MANAGING CASEFLOW IN STATE INTERMEDIATE
APPELLATE COURTS: WHAT MECHANISMS, PRACTICES,
AND PROCEDURES CAN WORK TO REDUCE DELAY?
RICHARD B. HOFFM AN *
BARRY MAHONEY **
* B.S., 1967, Cornell University; J.D., 1970, Harvard Law School. Member, District of
Columbia Bar; Director, Washington Office, The Justice Management Institute, 1997-2001; Senior
Counsel, Administrative Office of the U.S. Courts, 1992-1997; Clerk, D.C. Court of Appeals, 19871992.
** President Emeritus, The Justice Management Institute, Denver, Colorado. A.B., 1959,
Dartmouth College; LL.B., 1962, Harvard Law School; Ph.D., 1976, Columbia University.
This Article presents findings from a study by the Justice Management Institute (JMI) of case
processing in state intermediate appellate courts. The Article is based on research conducted by the
authors pursuant to a grant from the State Justice Institute to JMI (Grant No. SJI-98-N-032), and
is adapted from a project report of the same title that was prepared as a JMI work product in
October 2001. Points of view expressed in the Article are those of the authors and do not
necessarily represent the official position or policies of the State Justice Institute.
Appreciation is owed and warmly rendered to many who have been instrumental in conducting
this study, providing information and insight to the authors and making constructive suggestions
on earlier drafts of the manuscript. First, we owe thanks to those in the courts we studied who
allowed us access to their data and their knowledge and helped us resolve multiple issues of
coordination, interpretation, and analysis arising from the work. These key people included:
Maryland: Chief Judge Joseph F. Murphy, Jr., and Clerk of the Court Leslie D. Gradet, Esq.,
of the Court of Special Appeals; Sally W. Rankin, Court Information Officer for the Maryland
Courts; Philip S. Braxton, Jr., Director of Judicial Information Systems, Maryland
Administrative Office of the Courts, and Josephine V. (Cookie) Pollock, Mylita M. WardJacob, and Tom Conti of that office.
New Mexico: Chief Judges Harris L. Hartz, Lynn Pickard, and Richard C. Bosson, Judge
Thomas A. Donnelly, Clerk of the Court Patricia Rivera Wallace, and Chief Staff Attorney
Gina Maestas of the Court of Appeals; Elizabeth Blaisdell, Esq., of the Attorney General’s
Office; and Barry Rogoff, Esq., of the State Public Defender’s Office.
Ohio: In the Eighth District, Presiding Judges Patricia A. Blackmon and James M. Porter,
Court Administrator Mercedes D. Spotts, and Chief Deputy Administrator Mary Ann Morris.
In the Tenth District, Presiding Judges Dana A. Deshler and Cynthia Lazarus, Court
Administrator Jack Kullman, and Staff Attorney John Girardi.
Washington: In Division I, Chief Judges William W. Baker, Faye C. Kennedy, and Susan R.
Agid, Judge Anne L. Ellington, and Court Administrator/Clerk Richard D. Johnson. In
Division II, Chief Judges Elaine Houghton and C.C. Bridgewater, Judge J. Robin Hunt, and
Clerk of the Court David Ponzoha. In the Washington Office of the Administrator of the
Courts, Dr. Thomas Clarke, Director of Research, Bobbi Olson, Jennie Christopher, and Jean
Du.
Next, we are indebted to the members of this project’s advisory committee for their careful
review and many contributions toward improving this report: former Administrative Presiding
Justice Carl West Anderson of the California Court of Appeal, First District, San Francisco,
California; Presiding Judge Robert Muir, Jr., Appellate Division, Superior Court of New Jersey,
Morristown, N.J.; Professor James J. Alfini, Jr., Northern Illinois School of Law, DeKalb, Illinois;
Joy A. Chapper, Esq., Chief Deputy Clerk, District of Columbia Court of Appeals, Washington,
D.C.; Deirdre O’Meara Smith, Esq., former Clerk of the Court, Missouri Court of Appeals, Eastern
Division, St. Louis, Missouri; and Cornish F. Hitchcock, Esq., of the District of Columbia bar, an
experienced appellate lawyer. In addition, the cooperation of the National Conference of Appellate
Court Clerks (NCACC), under the leadership of three of its presidents—Joseph A. Lane,
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TABLE OF CONTENTS
Abstract. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 470
I. Overview of the Project and This Report. . . . . . . . . . . . . . . . . . . . . . . . 471
A. Objectives of the Project.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471
B. The Project’s Approach. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474
C. Rationale for Studying Intermediate Courts.. . . . . . . . . . . . . . . . . . 475
D. Information Needs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 475
E. Earlier Studies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476
1. Martin and Prescott’s 1981 Report. . . . . . . . . . . . . . . . . . . . . . 476
2. Chapper and Hanson’s Study of Four Intermediate
Appellate Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476
3. Hanson’s Time on Appeal Study. . . . . . . . . . . . . . . . . . . . . . . . 477
F. Organization of the Report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 478
II. Caseloads, Resources, and Case Processing in the Six Courts. . . . . . . . 479
A. Profiles of the Six Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480
1. Maryland Court of Special Appeals. . . . . . . . . . . . . . . . . . . . . . 480
2. New Mexico Court of Appeals.. . . . . . . . . . . . . . . . . . . . . . . . . 480
3. Ohio Court of Appeals for the Eighth District. . . . . . . . . . . . . . 481
4. Ohio Court of Appeals for the Tenth District. . . . . . . . . . . . . . 481
5. Washington Court of Appeals, Division I. . . . . . . . . . . . . . . . . 481
6. Washington Court of Appeals, Division II.. . . . . . . . . . . . . . . . 482
B. Filings and Resources.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 482
C. Trends in Filings and Dispositions, 1997-99. . . . . . . . . . . . . . . . . . 483
D. Approaches to Court Organization and Caseflow Management. . . 484
Clerk/Administrator, California Court of Appeal, Second District, Los Angeles, California; Leslie
D. Gradet, Clerk of the Court, Maryland Court of Special Appeals, Annapolis, Maryland; and
Michael Yerly, Clerk of the Court, California Court of Appeal, Sixth District, San Jose,
California—was most helpful, especially in connection with a focus group study conducted on
appellate processing mechanisms at the NCACC’s 1998 annual seminar in Stevenson, Washington.
Our first State Justice Institute (SJI) grant monitor, Richard Van Duizend, who was SJI’s Deputy
Director, took particular interest in this project, providing much useful advice and suggesting good
directions for us to follow. Mitch Michkowski, who succeeded him as grant monitor, was
unfailingly helpful and totally supportive of our efforts. Mary Ellen Donaghy, Staff Director of the
American Bar Association’s (ABA) Appellate Judges Conference, kindly provided useful reports
of discussions of caseflow management topics by the ABA Council of Chief Judges of Courts of
Appeals and the Council of Appellate Staff Attorneys.
Contributing to this study in major ways was Dr. Roger A. Hanson, formerly at the National
Center for State Courts, who prepared the analysis of technology appearing in Appendix A and lent
his experience in conducting several major appellate research projects to this enterprise throughout
the project. Professor Frederic Lederer of the Law School of the College of William & Mary, who
also directs the Courtroom 21 project in Williamsburg, Va., took time from his busy schedule to
advise the project on matters of technology. Much fieldwork for the project was performed and
report drafts relating to court operations were prepared by Deborah J. DeMille-Wagman, Esq.,
former Chief Deputy Clerk of the District of Columbia Court of Appeals. Douglas K. Somerlot,
JMI’s Executive Vice President, who directed the ABA’s project that produced Delay on Appeal,
also participated in the project’s fieldwork. Michelle Smith and Gayle Hegele of the JMI staff
assisted in typing the manuscript.
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E. Case Processing Times in the Six Courts: Methodological
Issues and Rough Comparisons. . . . . . . . . . . . . . . . . . . . . . . . . 485
F. Common Problems and Issues: An Agenda for Change. . . . . . . . . 488
1. Problems in the Initial Stages of the Appellate Process.. . . . . . 488
2. Problems in the Briefing Stage of the Appellate Process. . . . . 489
3. Problems in the Court’s Calendaring and Resolution
of Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 490
4. Issues of Court Goals, Leadership, Organization, and
Interrelationships with Other Justice System
Components. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 490
III. Using Technology to Improve Appellate Caseflow Management. . . . . 490
A. Computer-Aided Transcription.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 491
B. Electronic Filing of Records and Briefs. . . . . . . . . . . . . . . . . . . . . . 493
C. Videoconferencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494
D. Computer-Based Issue Tracking.. . . . . . . . . . . . . . . . . . . . . . . . . . . 495
E. Computer-Based Management Information Systems. . . . . . . . . . . . 496
IV. Components of Effective Appellate Caseflow Management. . . . . . . . . 497
A. The Importance of Adequate Resources. . . . . . . . . . . . . . . . . . . . . . 497
B. Key Elements of Sound Appellate Caseflow Management. . . . . . . . 498
1. Leadership. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499
2. Goals.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
3. Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 501
a. Information on pending caseloads. . . . . . . . . . . . . . . . . . . . 501
b. Information on the age of disposed cases. . . . . . . . . . . . . . 502
c. Information on continuance practices. . . . . . . . . . . . . . . . . 502
d. Trend data on filings and dispositions.. . . . . . . . . . . . . . . . 503
4. Communication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
5. Caseflow Management Policies and Procedures. . . . . . . . . . . . 504
a. Appellate court supervision of the record
preparation stage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
b. Appellate court scheduling of cases and monitoring
of the briefing process.. . . . . . . . . . . . . . . . . . . . . . . . . 505
c. Appellate court decision-making and opinion
preparation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 506
6. Judicial Responsibility and Commitment. . . . . . . . . . . . . . . . . 506
7. Staff Involvement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 507
8. Education and Training. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
9. Mechanisms for Accountability. . . . . . . . . . . . . . . . . . . . . . . . . 508
10. Backlog Reduction/Inventory Control. . . . . . . . . . . . . . . . . . . . 509
C. Reviewing Some Mechanisms That Have Produced Promising
Results. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 510
1. Mechanisms for Shortening the Record Preparation Stage. . . . 510
a. Transcript coordinator. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 510
b. Transcript oversight by court.. . . . . . . . . . . . . . . . . . . . . . . 511
c. Rapid transcription of audio tapes. . . . . . . . . . . . . . . . . . . . 511
d. Communication with trial court personnel. . . . . . . . . . . . . 511
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2. Mechanisms for Minimizing Delays During the
Briefing Stage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a. Policies for responding to requests for continuances or
extensions of time. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b. Addressing the compliance problems of institutional
litigants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Mechanisms for Ensuring Prompt Completion of the
Decision and Opinion Preparation Stage.. . . . . . . . . . . . . .
a. Prompt calendaring of cases for argument or
submission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b. Use of summary calendars. . . . . . . . . . . . . . . . . . . . . . . . . .
c. Early assignment of cases to panels and to a
“lead judge”.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d. Augmenting judicial and staff resources. . . . . . . . . . . . . . .
e. Shorter opinions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
f. Monthly reports and judges’ meetings. . . . . . . . . . . . . . . .
g. Proactive leadership by the chief judge. . . . . . . . . . . . . . . .
V. Looking to the Future: Next Steps Toward Improving
Appellate Caseflow Management.. . . . . . . . . . . . . . . . . . . . . . . . . .
A. National Data on the Work of IACs. . . . . . . . . . . . . . . . . . . . . . . . .
B. Demonstration Projects. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Education and Training. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D. Integrating Caseflow Management into the Appellate Process. . . .
Table 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Table 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Tables 3-A, 3-B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Table 4-A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Tables 4-B, 4-C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Table 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Appendix A
Note on Impact of Technology on Appellate Caseflow
Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Appendix B
A Catalog of Appellate Caseflow Improvement
Mechanisms.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Appendix C
Appellate Court Caseflow Management Self-Assessment
Questionnaire. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
511
511
512
512
512
512
513
513
513
513
513
514
515
517
518
518
521
522
523
524
525
526
527
538
541
ABSTRACT
American state intermediate appellate courts that succeed in handling their
caseloads expeditiously have taken responsibility for the entire appellate process,
beginning with the filing of the notice of appeal. They have recognized the
public interest in minimizing delays, have committed themselves to deciding
cases in a timely manner, and have mobilized themselves to pay sustained
attention to effective case processing. While resources are important to an
appellate court’s effectiveness in handling its caseload, how the resources are
actually used—i.e., what caseload management strategies and techniques are
employed by the court—can make a significant difference in case processing
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time. Further, the traditions or culture of the court, as well as the leadership and
commitment of the chief judge, play a very important role in the case processing
time.
Those are central findings of the Appellate Caseflow Management
Improvement Project, conducted by the Justice Management Institute (JMI)
under a grant from the State Justice Institute. The project was designed to build
on what has been learned through previous studies, focusing particularly on how
appeals are processed in six intermediate appellate courts: two in Ohio, two in
Washington State, and the statewide courts in Maryland and New Mexico. The
report presents basic information about workloads, resources, operating
procedures, and case processing time in the six courts and documents a number
of difficulties in making cross-jurisdictional comparisons of appellate case
processing times. Despite the methodological difficulties, the researchers were
able to see major differences among the courts and to identify a number of
common problems that impede effective case processing.
Key operational problems identified as common to many appellate courts
include delays in the preparation and filing of trial court transcripts, delays in the
appointment of appellate counsel for indigent defendants, case overloads facing
attorneys responsible for handling appeals in small law offices and in the offices
of major institutional litigants, leniency on the part of appellate courts in the
granting of extensions of time to file briefs, the sheer complexity of some cases,
and (in some courts) the existence of a large backlog of undecided cases. Among
mechanisms proven successful in assisting intermediate appellate courts with
reducing delays and improving performance, those that involve monitoring and
troubleshooting stood out. Often, technological innovations make it possible to
conduct some activities far more swiftly and efficiently than in the past, but they
rarely reduce the need for ongoing supervision of the process.
Looking to the future, the report recommends three initiatives to help
catalyze action—and, ultimately, significant improvements—in state
intermediate appellate courts: development of a system for regularly collecting
and publishing comparable data on the workloads, resources, structures,
operating procedures, productivity, and case processing times of intermediate
appellate courts; design, implementation, and evaluation of demonstration
projects that incorporate an array of modern procedures and technologies and are
aimed at significantly improving the expeditiousness of appellate case
processing; and design and presentation of educational programs, focused on
appellate caseflow management, for judges and court staff members.
I. OVERVIEW OF THE PROJECT AND THIS REPORT
A. Objectives of the Project
Fair and timely resolution of cases is at the heart of the business of the courts
and is essential for public confidence in the courts. It is as true in appellate
courts as in trial courts that “justice delayed is justice denied.” In some ways,
appellate delays are especially pernicious:
• Appellate delays prolong litigation and undermine the public interest in final
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resolution of litigants’ disputes. Parties on appeal remain enmeshed in the
dispute process and are unable to get on with their lives and business.
• Reversal of a trial court decision or remand for further proceedings extends
a dispute even longer. The longer the appellate process takes, the more
likely it is that witnesses will be unavailable, memories will fade, and
evidence will be stale when the case is again before the trial court.
• Appellate delays affect not only the parties to the case that is delayed, but
also the actions of others who are involved in cases that have similar facts
and issues, thereby contributing to uncertainty in law and in business and
social relationships.
• Lengthy appellate delays disregard well-documented public concern about
court delay. When appellate courts cannot manage their business well, they
contribute to a negative model of court processes and tend to undermine
public trust in the legal system.
The relatively little research that has been conducted on case processing
times in appellate courts has tended to focus first on the basic task of
documenting how extensive the delay is and next on seeking to ascertain which
of several factors—resources, court structure, procedures, or management, to
name those most frequently mentioned—best explains variations across courts
in the pace of appellate litigation. This project has been designed to build on
previous work in the field and to produce practical tools to enable appellate court
judges and managers to reduce backlog and delay. The aim has been to develop
a better understanding of why some appellate courts are able to handle their
business (or stages of that business) expeditiously while others are much slower;
and learn why and how the expeditious courts have been able to overcome the
obstacles that plague the slower courts, with particular attention given to
techniques that intermediate appellate courts have used to reduce backlogs as part
of an overall delay reduction program. The project has had three main
objectives:
• To broaden the base of practical knowledge about how appellate courts
function and about variables that affect appellate delays;
• To identify approaches and techniques that work effectively in minimizing
delays in appellate decision-making, without compromising the quality of the
decisionmaking; and
• To develop work products—including a self-assessment guide and a final
report that has recommendations for practical steps that can be taken to
reduce appellate backlogs and delays—that can be used by appellate courts
interested in reducing backlogs and delays and in generally improving
appellate court caseflow management.
In conducting the project, we have interviewed more than fifty persons:
appellate judges; appellate court clerks and administrators; judicial adjuncts;
conference, settlement, and staff attorneys in appellate courts; appellate counsel
from state attorneys-general’s offices and public defender offices; attorneys in
private practice; and academic observers. The six courts studied provided case
processing data to the extent that they were able, and we have worked with them
to refine the data for use in comparative presentation. The difficulties involved
in this process are discussed in the report. We are also appreciative of the
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interest shown by thirty-five members of the National Conference of Appellate
Court Clerks who attended a focus group we conducted on appellate court case
processing improvements at their annual seminar.
By examining policies and procedures in six intermediate appellate courts
that vary considerably in the speed at which they handle cases—three relatively
fast, three somewhat slower in processing cases; two pairs within states, two
other state-wide courts—we seek to move closer to identifying strategies and
techniques that can be broadly applicable in reducing appellate delays. If each
court is examined more closely, however, it can be seen that the strategies and
mechanisms used by these courts to manage their caseloads are closely linked to
the long-term attitudes and practices that the court has developed toward its work
and its clientele. In Part II we present brief snapshots of these courts by way of
framing the analysis of how they operate.
The report has four key themes. First, courts that have succeeded in reducing
appellate delay have organized and mobilized themselves toward this goal.
These courts, and in particular, their leaders, have recognized the problem of
appellate delays as one meriting their sustained attention. They have developed
and implemented particular mechanisms deemed appropriate for each court and
its environment.
Second, successful courts have communicated their intentions and actions in
reducing appellate delay to the bar, especially, and also to the executive branch
and to legislative appropriating bodies, litigants, and the public.1 Appellate
courts that have recognized the growing interdependency of courts within the
greater communities they serve have been able to increase their abilities to meet
the rising expectations of effective performance.
Third, the expeditious courts, along with requiring those litigating before
them to observe the time limits set by rules, have in turn committed themselves
to deciding cases in a timely manner. These courts have instituted procedures to
ensure that cases do not linger in one tardy judge’s chambers or get lost in the
many cracks between chambers of participating judges. Their judges have
reviewed the argued-and-undecided docket frequently and determined how they
can best work together to hash out problems delaying a decision.
Lastly, the courts that have dealt effectively with delay have learned that the
court must accept responsibility for taking control of the entire appellate process
from the filing of the initial notice or petition through issuance of the opinion or
other ruling and any en banc procedures. For effective appellate courts, there has
been no real division of cases among so-called “lawyer time” and “judge time.”
Rather, the entire process has been viewed as an integrated one. Expeditious
courts have monitored preparation of the trial transcript and the clerk’s record,
ensured the efficient handling of motions and timely filing of briefs and
appendices, and issued opinions promptly.
1. Examples of communication as discussed here are examined in infra Part IV.
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B. The Project’s Approach
This project has examined specific methods used in each of the six
participating courts to handle its caseloads. Because the value of any individual
technique cannot be definitively evaluated by assessing its impact in only one
court, we have not presented any view as to the overall effectiveness of a
particular approach or method in itself. Instead, we have sought to gauge how
well an approach or method served the court employing it in resolving cases
expeditiously.
Examining the processes used in individual courts helps us gain a sense of
what general approaches and specific mechanisms contribute to expeditious case
processing in appellate courts. As Joy Chapper and Roger Hanson observed
some years ago, trial court caseflow management principles are clearly applicable
to appellate courts.2 Even as a trial court’s culture influences the pace of
litigation,3 it is similarly the case that in the small, somewhat cloistered world of
appellate courts, the prevailing culture of the court is likely to help explain how
speedily and effectively the appellate court handles its caseload. Although the
relationship to resources may become important—especially in how the court
deals with augmenting the resources needed to litigate by the major institutional
litigants who appear before the judges (the appellate sections of state or county
prosecutorial and public defender offices)—even the most useful mechanisms
intermediate appellate courts employ to produce speedier case processing often
arise directly from the courts’ own cultures.
In addressing issues of appellate case processing, it is important to keep in
mind the significant difference in magnitude between appellate courts and trial
courts. In contrast to trial judges, intermediate appellate judges still work on
relatively small case dockets. Individual appellate judges work on hundreds
rather than thousands of cases, and they normally write decisions in far fewer
than 100 cases a year.
Additionally, appellate courts are collegial bodies. They hear cases in panels
(typically consisting of three judges, but sometimes more) and the decisionmaking processes—both for individual cases and for caseload management
policy—tend to be more complex than those of trial courts. The ability of judges
even in large-volume intermediate appellate courts to retain a focus on the
particular case looms large in any effort to assess the ways in which these courts
function. “Every court has its own culture” was the way one intermediate
appellate court judge, bent on changing the way her court operated, described to
one of the authors how judges in that court tended to spend the same amount of
time on each of their cases, regardless of the differences in complexity among
them. While recognizing that national-scope judicial education and training
programs could shape a new judge’s view of how an appellate court should
2. JOY A. CHAPPER & ROGER A. HANSON, NAT’L CTR. FOR STATE COURTS, INTERMEDIATE
APPELLATE COURTS: IMPROVING CASE PROCESSING 9-10 (1990).
3. THOMAS W. CHURCH ET AL., JUSTICE DELAYED: THE PACE OF LITIGATION IN URBAN TRIAL
COURTS 54 (1978).
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function, far more important in the change-oriented judge’s view was the
immediate and particular court world to which the new judge returned.
C. Rationale for Studying Intermediate Courts
The project focuses on intermediate appellate courts (“IACs”) because these
are the courts in which the great bulk of appellate cases are resolved. Unlike
state courts of last resort, IACs have limited power to control their caseloads.
Most receive and dispose of far greater numbers of cases than do state supreme
courts. In a few states, the court of last resort exercises great control over the
intermediate appellate court or courts by sifting through appeals to select those
that should proceed to direct review in the highest court and sending others to the
intermediate court.4 In addition, the highest courts may decide which
intermediate appellate court opinions are approved for publication. Indeed, in
some states, the issuance of a highest court opinion even results in the expunging
of the intermediate court ruling.
While state courts of last resort often play a leadership role through their
exercise of general superintendence authority over the court system, intermediate
appellate courts normally have no other assignment than to resolve the cases
brought to them for decision. They are the “work horses” of appellate litigation
in most states. In total, there were almost 200,000 cases filed in 1998 in state
intermediate appellate courts.5 Expeditious resolution of these cases is important
for the litigants in these cases and for public confidence in the courts.
D. Information Needs
There has been only sporadic attention to determining the extent and sources
of delay in state appellate courts, and much remains to be done even to provide
reliable information at regular intervals that describes how long these courts take
to dispose of their cases. For example, there is no regularly available national
report of times between filing and disposition for state appellate courts. An
effort to gather such data was made for several years and discontinued almost
two decades ago.6 The most recent national-scope study made great efforts to
assemble this information and contained 1993 statistics from thirty-five
intermediate appellate courts.7 No one has since continued to provide this
information on a national level. As discussed in Part II, this project’s
comparatively modest effort to collect comparable data from the six participating
4. The Maryland Court of Appeals, the state’s highest court, may decide to take cases
directly, through its review of all cases when they are first filed in the intermediate court of special
appeals. This is also a practice employed in Massachusetts.
5. EXAMINING THE WORK OF STATE COURTS, 1998, at 87 (Brian J. Ostrom & Neal B. Kauder
eds., 1979) (reporting the total cases filed in 1998 as 199,558).
6. See, e.g., NAT’L CTR. FOR STATE COURTS, STATE COURT ANNUAL REPORT 1981 and 1985.
In 1981, this continuing series reported time-in-stages and on-appeal information for fewer than ten
IACs. By 1985, the table had been eliminated from the report.
7. See ROGER A. HANSON, NAT’L CTR. FOR STATE COURTS, TIME ON APPEAL 5 (1996).
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courts, using the courts’ own reports on case processing times, achieved only
limited success.
E. Earlier Studies
There have been three principal comparative studies of appellate case
processing time, each conducted by researchers for the National Center for State
Courts. This section briefly summarizes approaches and key conclusions from
those three projects.
1. Martin and Prescott’s 1981 Report.—John Martin and Elizabeth Prescott
analyzed data collected on appellate cases filed during 1975-76 in seven
intermediate appellate courts and three courts of last resort.8 They found that the
courts varied dramatically in the time required to process cases, with average
total time in intermediate appellate courts ranging from 240 to 649 days.
Looking at the relationship between volume and case processing times, they
found that courts with larger caseloads took no longer (or only slightly longer)
to process their cases than did courts with smaller caseloads. They also
found—surprisingly—that courts with more filings per judge were appreciably
faster than courts with fewer cases per judge. Martin and Prescott noted that the
lack of a positive statistical relationship between case volume and delay did not
mean that there was no interrelationship, but stressed that the problem was much
more complex than too many cases for too few judges. Perhaps their most
important conclusion was that the structure and procedures of appellate courts
appeared to have a greater impact on case processing time than did the number
or type of cases filed. Optimistically, they emphasized that “state appellate
courts are not . . . at the mercy of . . . ever-increasing caseloads. When necessary,
[they] can modify their structure and organization or adjust their procedures to
meet the demands of larger caseloads.”9 In their words, “Workable solutions to
delay are available. However, each appellate court is in many ways a unique
system. No single solution or set of solutions will necessarily solve every court’s
problems. Solutions must be developed within the context of a particular court’s
goals, needs, structure, and organization.”10
2. Chapper and Hanson’s Study of Four Intermediate Appellate Courts.—A
decade after the Martin and Prescott study was completed, Joy Chapper and
Roger Hanson conducted a comparative study of four state intermediate appellate
courts, drawing on case record data from appeals filed in 1986 and 1987.11
Several of their key findings have been especially relevant for the work of this
project:
• Intermediate appellate courts differ in their subject matter jurisdiction.
Consequently, there are considerable differences across the courts in the
8. JOHN A. MARTIN & ELIZABETH A. PRESCOTT, APPELLATE COURT DELAY, at xii & n.1
(Michael J. Hudson ed., 1981).
9. Id. at xxi.
10. Id.
11. See CHAPPER & HANSON, supra note 2, at xv.
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MANAGING CASEFLOW
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composition of their caseloads.12
• “The volume of appeals filed or docketed overstates a court’s actual
workload,” because many appeals “are dismissed or abandoned before they
reach the court for consideration.”13
• None of the courts had what could be described as a comprehensive case
management system, with “information on and control over the processing
of every appeal from the time a notice of appeal is filed.”14
• The courts varied in their concern for overall appeal time. All of them
“pa[id] particular attention to the time between submission” of briefs and the
court’s decision, and three had information on elapsed times during this
period. However, “considerably less data [were] available in most of the
courts on the time consumed by other stages of the appellate process.”15
• Principles distilled from the trial court experience with caseflow
management—including exercising early and continuous control, creating
the expectation that scheduled events will take place as planned, and
monitoring case processing time—have clear parallels in appellate court case
processing. However, “these principles will not be applied fully until
information systems are organized to provide decisions upon which
appropriate management decisions can be based.”16
• Not all appellate courts collect case-processing time information, and there
is little documentation of key aspects of court operations, including caseload
composition, appeal attrition, and procedures for handling appeals with
various characteristics. The unavailability of this sort of information makes
it difficult for appellate courts to identify problems or opportunities for
improvement, precludes them from assessing their own performance in
relation to others, and makes it difficult to undertake meaningful cross-court
analysis of the limited caseload and case processing time data that do exist.17
3. Hanson’s Time on Appeal Study.—The most recent comparative study of
appellate case processing time, conducted by Roger Hanson, used data from
appeals resolved during 1993 in thirty-five intermediate appellate courts.18 The
data indicate that although a few IACs handle their cases very expeditiously, the
vast majority can fairly be characterized as being somewhat slow to very slow.
Only five of the thirty-five intermediate appellate courts studied met one primary
“reference model” incorporated in the American Bar Association’s (ABA)
standards for timely disposition of appellate cases: completion of at least
seventy-five percent of all cases within 290 days. Four of the five were
12. Id. at vi, 4-5. Chapper and Hanson noted, however, that there were some similarities
across the courts in terms of the areas of underlying civil law and types of criminal offenses that
were involved in appellate cases.
13. Id.
14. Id. at 55.
15. Id. at 57.
16. Id. at vii.
17. Id. at 61-62.
18. HANSON, supra note 7, at 5.
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specialized intermediate appellate courts—i.e., courts handling only civil appeals
or only criminal appeals. Nine courts took at least 580 days, twice the ABA
standard, to resolve seventy-five percent of their cases. Hanson concluded that
four main factors contributed to slower case processing:
• resources—in particular, having more appeals per law clerk;
• method of selecting the presiding or chief judge—slower courts tended to
select their chiefs by an internal procedure such as seniority or election by
the bench;
• regional, rather than statewide, jurisdiction; and
• procedural characteristics—for example, “requir[ing] a reasoned opinion in
every case” and placing no limitations on oral argument.19
After conducting a regression analysis of the 1993 data, supplemented with
some new information on selected managerial aspects of the courts, Hanson
subsequently concluded that resources—in particular, the number of judges and
law clerks in relation to filings—are the key determinants of appellate court
expeditiousness.20 He took the view that how the resources and mechanisms
were utilized—what might be called the management factor—was less
influential, although he acknowledged that “[b]asic principles of modern case
management did appear to encourage timeliness.”21
F. Organization of the Report
The remainder of this report is organized in four Parts. Part II presents
snapshot profiles of the six courts, information about their workloads and
resources, and data on case processing times in the courts. It also includes a
discussion of key problems affecting caseflow management that emerge from a
review of the quantitative data and from interviews with appellate practitioners.
Part III focuses on ways in which new technology can be used to address
appellate caseflow problems and produce substantially more expeditious
resolution of appeals. Part IV draws on information acquired in this project plus
insights from earlier research in both trial and appellate courts to develop a
framework for future efforts for improving appellate caseflow. Part V outlines
recommendations for specific appellate caseflow management initiatives.
There are three appendices. Appendix A is a note on the impact of
technology on appellate caseflow management, prepared by Dr. Roger Hanson.
It supplements the material in Part III, focusing particularly on management
information systems, issue tracking, and electronic filing. Appendix B is a
catalog—or simple listing—of appellate caseflow management mechanisms and
techniques that have been proposed (and in some instances implemented) over
the past three decades. Appendix C is an “Appellate Court Caseflow
Management Self-Assessment Questionnaire” that can be used by practitioners
19. Id. at 39-40.
20. See Roger A. Hanson, Resources: The Key to Determining Time on Appeal, CT. REV.,
Fall 1998, at 34, 42-43.
21. Id. at 35.
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to gauge their own court’s effectiveness on key dimensions of appellate caseflow
management.
In examining the work of the six courts and preparing this report, we have
sought to build upon insights from the earlier studies without uncritically
accepting their conclusions. For example, the relative importance of resources
vis-à-vis caseflow management strategies remains for us an open question.
However, some of the observations of earlier research—notably the consistent
findings that court caseloads and case management practices vary widely, and
that information is seldom used well for caseload management and problem
solving—have been helpful in framing our own work. It is our sense that both
resources and management strategies are important. Resources are essential, but
how they are used—what the court’s clerk, judges, law clerks, staff attorneys,
and other staff members actually do after a notice of appeal is filed, what
standards and expectations they set for themselves and for the appellate bar, and
what combination of caseflow management techniques they employ—seems to
make a significant difference, as do the traditions and general culture of
individual courts. This report does not contain definitive findings, but it should
help to advance general understanding of how appellate courts function at the
start of the twenty-first century. It should be viewed as primarily an effort to
describe appellate processes, to spotlight key issues, and to identify opportunities
and strategies for improvement.
II. CASELOADS , RESOURCES , AND CASE PROCESSING IN THE SIX COURTS
Managing cases to produce fair and timely decisions should be a primary
goal of every intermediate appellate court. However, studies have shown that
most appellate courts do not decide cases as quickly as national standards (and
the experience of some courts) suggest is possible.22 Some appellate courts,
though, have become more adept than others at moving cases more speedily and
effectively from filing to disposition. The six courts studied in this project
reflect this diversity: three could be fairly characterized as relatively expeditious
and one stands in the middle. The other two courts, although still processing
cases at a relatively slower speed, have in recent years recorded progress in
reducing the total time that their cases are on appeal. The six courts and their
locations are:
• Maryland Court of Special Appeals (Annapolis)
• New Mexico Court of Appeals (Santa Fe)
• Ohio Court of Appeals, Eighth District (Cleveland)
• Ohio Court of Appeals, Tenth District (Columbus)
• Washington Court of Appeals, Division I (Seattle)
22. See JUDICIAL ADMIN. DIV., AM. BAR ASS’N, STANDARDS RELATING TO APPELLATE
COURTS §§ 3.50-3.57 and accompanying commentary (1994). Roger A. Hanson’s book entitled
Time on Appeal is the most recent of several studies confirming the overall slowness of appellate
caseflow processing nationally. HANSON, supra note 7; see also CHAPPER & HANSON, supra note
2; MARTIN & PRESCOTT, supra note 8.
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•
Washington Court of Appeals, Division II (Tacoma)
This Part provides an overview of case processing in each of the six courts.
It begins with a brief description of each court, followed by tables providing an
overview of the workloads and human resources (judges, other judicial officers,
law clerks, and staff attorneys) available to handle the caseloads in the six courts.
Following a discussion of the courts’ varying approaches to managing their
caseloads, we present data on case processing times, overall and by major stages
of the appellate process. The Part concludes with a discussion of key problems
affecting appellate caseflow management that emerge from analysis of the
quantitative data and from interviews with judges and court staff members in the
six participating courts.
A. Profiles of the Six Courts
The judicial complements of all six of the courts studied in this project are
filled by popular election, although the chief or presiding judges are selected
either by the governor or by the judges of the court. All of the courts assign
cases to three-judge panels for consideration, with some courts having authority
to rehear cases en banc following panel decision. Each of the courts has some
kind of screening mechanism that is used to assign cases that meet certain criteria
to different calendars featuring full or expedited/summary procedures.
Jurisdiction of these courts is almost entirely mandatory: each court must review
all of the cases brought to it, with no authority on its part to exercise selectivity
in determining which cases it will adjudicate. (By contrast, most appellate courts
of last resort exercise considerable discretion in deciding which cases to accept
for review.) Only the term of the Maryland court’s chief judge is indefinite; in
each of the other courts, the chief or presiding judge serves a one- or two-year
term, although these may be renewable.
1. Maryland Court of Special Appeals.—This thirteen-judge court is
Maryland’s statewide intermediate appellate court. Six of the judges are elected
statewide and seven from the state’s judicial circuits, while the chief judge is
selected by the governor. Most jurisdiction is nondiscretionary. Each judge has
two law clerks and a secretary. The court’s central staff attorneys prepare
recommendations on applications for allowance of appeal and proposed opinions
in substantive summary docket cases and most criminal cases submitted on
briefs. The court has been implementing a new information system. Civil cases
may be sent for a prehearing conference if one screening judge so determines.
Although most court reporters in the state use computer-aided transcription
(CAT) to prepare appellate transcripts, the filing of civil records is slow. One
major procedural technique helps keep cases on schedule: after the clerk’s office
reviews the record, a scheduling order is issued setting the month of argument.
Cases are assigned to panels at least a month before the argument month.
2. New Mexico Court of Appeals.—This ten-judge court is the state’s single
intermediate appellate court. The chief judge, selected by vote of the full court,
has traditionally been the most senior judge actively sitting on the court and
serves a two-year term. The court’s jurisdiction, which is almost all
nondiscretionary, has been enlarged as the Supreme Court of New Mexico has
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increased the discretionary sector of its jurisdiction.
In sparsely-populated New Mexico, the majority of the population lives in
or around the Albuquerque and Santa Fe areas. The court hears argument
primarily in those two locations, but also sits on occasion in Las Cruces,
Carlsbad, Las Vegas, and Roswell. The court has a backlog problem, which may
arise from the fact that it has had one of the largest increases in filings sustained
by any state intermediate appellate court. Significantly, its backlog has not
grown out of proportion to the increases in filings. The court is implementing a
sorely-needed improved information system.
3. Ohio Court of Appeals for the Eighth District.—The Eighth District is
Cuyahoga County, which includes the city of Cleveland. This twelve-judge court
sits in four panels of three judges each. The court has been able to operate on a
four-panel basis for almost ten years since it last acquired more judges.
Jurisdiction is primarily mandatory. The presiding judge serves a renewable oneyear term and exercises administrative authority through a small staff headed by
the court administrator. There is a good working relationship with the appellate
section of the elected clerk of court’s office, which is responsible for entry of all
filed documents into the information system. The information system dates back
to 1984 and has been upgraded three times; there is a systems manager on staff.
Chambers staff have full access to the system and secretaries in chambers release
decisions. Opinion summaries are distributed to the judges to avoid conflicts
between panel rulings.
4. Ohio Court of Appeals for the Tenth District.—The Tenth District
consists of only Franklin County, which includes Columbus, the state capital.
Because of its location in the state capital, this eight-judge court has many
administrative cases (denominated as “original actions”) on the docket. Each
presiding judge has previously served as administrative judge. (This is a
relatively standard progression in Ohio Courts of Appeals, with a different judge
filling each post on an annual basis.) The court’s information system, the Ohio
Appellate System Information System (OASIS), is maintained through the
Franklin County data processing center under the supervision of the County
Auditor. All trial courts except probate are on the data processing system and all
judges get full quarterly reports.
5. Washington Court of Appeals, Division I.—The Washington Court of
Appeals comprises three divisions, located in Seattle, Tacoma, and Spokane. All
three divisions elect a presiding chief judge for the entire court of appeals. The
presiding chief judge serves as the chairperson of the full court executive
committee. Division I has ten judges who receive appeals from three districts
that include six counties, of which King County, where Seattle is located, is the
largest. The judges of the division elect their chief judge and acting chief judge;
the latter is usually preparing to become chief judge. Four appellate
commissioners and seven staff attorneys assist in processing the Division’s
workload. As part of the Division’s calendar management efforts, the judges of
the court have adopted an accelerated sitting schedule whereby oral argument
terms are scheduled approximately every six weeks. A term consists of two
weeks sitting followed by four weeks in chambers. Cases are now assigned to
the three-judge panels two terms in advance.
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6. Washington Court of Appeals, Division II.—This seven-judge court is
located in Tacoma and receives appeals from three districts that include thirteen
counties. As with Division I, this division elects its own chief judge to direct its
administration, as well as an acting chief judge, who is considered to be
preparing to become the next chief judge. Every case, except for motions on the
merits and Anders petitions,23 is screened after briefing by an extern or intern.
After this screening, a memorandum is prepared for review by a judge,
recommending one of four ratings. Rating I means that the case is one that
presents a typical sufficiency of evidence claim. It is less complex than a motion
on the merits. Rating II is a court-initiated motion on the merits. There is no
way for a party to challenge this rating. Rating III is a case that is suitable for the
“no-oral argument” calendar. It is resolved by an unpublished opinion. Rating
IV is a case that will end up fully briefed and on the oral argument calendar. All
judges vote on the rating to be assigned to a case. Deference is given to the
highest category chosen by any one of the judges. All divisions of the court
participate in the statewide appellate information system, ACORDS, and the
appellate clerks have led the effort to standardize data fields and reporting
categories among the three divisions.
Table 1 provides an overview of the six courts’ geographic jurisdiction, size,
governance structures, and available judicial officer, law clerk and central staff
attorney resources.24
B. Filings and Resources
As Chapper and Hanson noted in their 1990 report, the volume of appeals
filed in a court “overstates a court’s actual workload,” because a substantial
number of appeals are dismissed or abandoned before they are ever considered
by the court.25 The attrition rates vary significantly by court, further
complicating the problems of cross-court comparisons.26 Nevertheless, given the
difficulties of developing accurate data from each court on precisely what cases
23. Under Anders v. California, 386 U.S. 738 (1967), a court is required to afford a full
internal review to any motion to withdraw from representing the indigent client based on asserted
lack of appealable issues by court-appointed counsel in a criminal case. Id. at 744. After requiring
counsel to submit a brief discussing each potential issue, and affording the client a chance to
respond, “the court—not counsel—then proceeds, after a full examination of all the proceedings,
to decide whether the case is wholly frivolous.” Id. Reviewing these petitions of counsel (and
usually the entire trial transcript) has been commonly assigned to central staff counsel by many
appellate courts.
24. See infra tbl.1. Data regarding number of staff attorneys and law clerks is from ROGER
A. HANSON ET AL., THE WORK OF APPELLATE COURT LEGAL STAFF (2000), which contains extensive
information regarding the varied ways in which these attorneys are used, as well as information
obtained from interviews with court personnel. Supplemental information was obtained from the
Washington state courts website: http://www.courts.wa.gov (last visited Jan. 28, 2002).
25. CHAPPER & HANSON, supra note 2, at vi.
26. See id. at 10-11.
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(and how many) wash out, total filings are an appropriate starting point for
assessing the volume of an appellate court’s business.
In terms of filings, the six courts included in this study represent the midrange of American state intermediate appellate courts. The Maryland and Ohio
Eighth District (Cleveland) courts receive about 2000 cases annually, while the
Ohio Tenth District (Columbus) and Washington Division I (Seattle) record
about 1500 filings each year. Filings in the New Mexico and Washington
Division II (Tacoma) courts approximate around 1000 annually.27 The size of the
benches also reflect the makeup of the great majority of intermediate appellate
tribunals. The largest courts in terms of volume measured by filings—Maryland
and Ohio Eighth—have the most judges, thirteen and twelve, respectively. The
sizes of the others, however, do not correlate to the volume of the cases filed.
The middle-range volume courts, Ohio Tenth and Washington I, have eight and
ten judges, respectively, and the smaller-volume courts, New Mexico and
Washington II, have ten and seven, respectively.
As Roger Hanson has emphasized, judges are not the only resources
available to help appellate courts resolve cases. Hanson’s research suggests that
the most important correlates of expeditious case processing time are relatively
fewer appeals filed per judge; and more legal staff assigned to individual
judges.28
The courts participating in this study have somewhat different arrangements
with respect to both the number of non-judge resources and the ways in which
these resources are used. Table 2 provides an overview of the number of filings
in relation to the various judicial resources available to each of the courts.29
As Table 2 shows, there is a very wide variation in the number of filings per
judge, ranging from ninety-five per judge in New Mexico to 188 per judge in the
Tenth District of Ohio and Washington Division I. The variations are much less
marked when the number of filings is examined in relation to the number of law
clerks (range = 75-95) or to the total judicial resource complement (range = 2749).
C. Trends in Filings and Dispositions, 1997-99
Tables 3-A and 3-B show that the volume of filings did not change
dramatically in any of the courts during the 1998-99 period.30 However, filings
in the two Washington courts decreased somewhat from 1998 to 1999. Both
courts took advantage of the decrease in filing to increase the number of
dispositions and thus reduce the backlog of unresolved cases. By contrast, while
filings also declined in the two Ohio courts during this period, these declines did
not stimulate any significant increase in dispositions.
27.
28.
29.
30.
See infra tbls.3-A, 3-B.
Hanson, supra note 20, at 42.
See infra tbl.2.
See infra tbls.3-A, 3-B.
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D. Approaches to Court Organization and Caseflow Management
As the data in Table 1 indicate, the six courts in this project have different
types of non-judge resources available to them. For example, judges in the New
Mexico Court of Appeals have only one law clerk each, while the judges in all
of the other courts have two. However, the New Mexico court has the largest
complement of central staff attorneys. Three of the courts (Ohio Tenth and the
two Washington courts) have judicial officers (three appellate magistrates in the
Ohio Tenth; commissioners in the Washington courts) who have authority to
handle some types of matters that in other courts would come before the judges.
Comparing the approaches used by the Ohio Tenth and New Mexico courts
illustrates how resources can be used in different ways that are tailored to the
needs of each court’s jurisdiction and caseload composition. The Ohio Tenth,
which (along with Washington I) has the largest number of filings per judge (see
Table 1), is able to handle 1500 cases annually with only eight judges because
it uses both appellate magistrates and pre-hearing counsel to handle the initial
stages of a great many appeals. The three appellate magistrates hear worker
compensation and prisoner rights cases from all over the state (special statewide
jurisdictional responsibilities of this court arise from its location in the state
capital) and prepare preliminary decisions. These cases account for about onethird of the court’s caseload, and the work of the magistrates enables the judges
to review the cases in a more cursory manner. Additionally, in a typical year the
court’s pre-hearing counsel hold conferences in about 500 cases and manage to
dispose of almost 200 of these through settlement, withdrawal, or other
disposition.
In contrast, the New Mexico court focuses first on identifying and expediting
a large number of relatively uncomplicated cases, assigning about half of the
fifteen staff attorneys to prepare calendaring memoranda for the court’s use in
assigning cases to tracks and expediting decisions. This work, along with the
ongoing involvement of a calendaring judge, enables the court to make effective
use of a summary calendar. About half of the court’s cases are handled on the
summary calendar in an average of slightly over five months from initial filing.
The remainder of the central staff attorney group conducts legal research on
cases on the court’s general calendar.
The two markedly different processing routes used by the Ohio Tenth and the
New Mexico court for some categories of cases are representative of the kinds
of varying approaches that different IACs use for particular jurisdictional areas.
Most intermediate appellate courts have some types of jurisdiction for which they
use special procedures. In addition to the Ohio Tenth’s use of appellate
magistrates for some administrative law appeals and New Mexico’s use of a
summary calendar, the two Washington courts have established abbreviated
procedures for review through what is called a “motion on the merits.” These
motions are decided by commissioners, who are judicial adjuncts. In 1998,
approximately eighteen percent of Division I’s decisions and thirty-four percent
of Division II’s decisions came on these motions on the merits.
After separating some special categories of cases (for example, the worker
compensation and prisoner rights cases handled by the appellate magistrates in
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MANAGING CASEFLOW
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Ohio Tenth) as well as the cases that have been settled or withdrawn or have
been disposed of through summary processes, appellate courts confront what is
generally regarded as the core of their caseloads: fully-briefed appeals to be
decided on the merits, usually after oral argument. This group is likely to be
appreciably smaller than the court’s total filings. The New Mexico court for
example, disposed of 451 cases on its summary calendar in 1999-2000, compared
with a total of 309 cases on its other three calendars (general transcript, tape, and
legal). The fact that appellate courts assign certain categories of appeals to
special processing routes adds further complications to the task of attempting
cross-court comparisons. The categories of cases assigned to special routes vary
by court, and so do the routes themselves. Rather than producing a broadly
similar core of fully-briefed appeals, the use of these approaches is more likely
to leave us with less comparable end groups of cases.
E. Case Processing Times in the Six Courts: Methodological Issues and
Rough Comparisons
Comparing case processing time data across appellate courts remains
problematic. As noted above, the geographic and subject matter jurisdictions
differ in significant respects, the levels of resources and the ways in which
available resources are allocated vary considerably, and the procedural
approaches for handling particular categories of cases vary as well.
In this project, resource constraints have made it impossible to collect data
on the time between events directly from court records. Instead, we have sought
to use case processing time reports generated by the courts themselves. There are
three main difficulties with this approach: the six courts report data on caseloads
and court calendars that are dissimilar in terms of caseload composition; some
of the courts changed their statistical procedures during the course of this project;
and the courts use different measures to report the information on case
processing times.
Three of the courts (Maryland and the two Washington courts) can provide
case processing time data in a fashion that enables comparison of their
performance with the American Bar Association standards for appellate case
processing. (Those standards call for seventy-five percent of all appeals to be
completed within 290 days from the filing of the notice of appeal and ninety-five
percent within 365 days.) However, the other three courts follow a different
approach. The information reported by each court is as follows:
• Maryland.—The judicial information system has been able to generate
reports showing the time required to complete seventy-five percent and
ninety-five percent of the cases, although the judicial branch annual report
presents average times, using days and months in different tables.
• New Mexico.—The court reports average times from filing to disposition for
cases on both the “regular” calendar and the summary calendar.
• Ohio—Eighth District.—The court reports average times from filing to
disposition for regular and accelerated docket cases. The average times for
cases decided on the merits and those disposed of prior to such decision are
reported separately. The court also maintains statistics on compliance with
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the time standards established by the Ohio Supreme Court.
Ohio—Tenth District.—The court maintains time statistics only in the format
used by the Supreme Court of Ohio to measure compliance with its
guidelines. Thus, in addition to filing and termination data, the reports
present the number of cases pending, and of those, the number pending
beyond the periods set by the guidelines for disposition. The Supreme
Court’s guidelines call for disposition of all cases within 210 days, but for
original actions to be disposed of within 180 days.
• Washington—Divisions I and II.—Effective with the 1998 statistics, both
courts changed their reports to follow the seventy-fifth percentile and ninetyfifth percentile of terminations format. Other definitions were also altered.
Consequently, the 1998 and later data are not directly comparable to pre1998 numbers. These figures only include cases that proceed through the
appellate process to merits decision.
It should be noted that, in reporting data on their own case processing times,
most of the courts do not include in the statistics those cases that are disposed of
by order prior to the record being filed, briefs submitted, or decision rendered.
Such exclusions typically involve appeals that are withdrawn, settled, or
dismissed on motion. The result of excluding cases with these types of
dispositions from statistics on case processing time is that the cases disposed of
most quickly are not included in the calculations of case processing time.
Despite the problems that the different reporting formats create for
undertaking cross-court comparisons, there are advantages to using them for this
report:
• The reports already exist; special data collection efforts are not needed.
• The data are more current than would be possible if special data collection
efforts were undertaken.
• Although different courts use different measures of case processing time, it
is possible to see major differences among courts. In particular, it is possible
to see which courts operate expeditiously and which ones are very slow.
• The lack of common measures in the reports highlights the need for national
standards and for a national effort to report regularly meaningful data on
appellate courts’ caseloads and performance.
The most comparable data in Table 4-A include: for five courts, average
times from filing to decision in all cases; for three courts, the number of days
required to resolve seventy-five percent and ninety-five percent of civil and
criminal appeals; and, for the two Ohio courts, the percentages of cases pending
longer than Ohio’s 210-day filing-to-disposition standard.31
The overall case processing times (notice of appeal to disposition) reported
by each court for the years 1998 and 1999 are shown in Tables 4-B and 4-C.32
Table 4-A shows that, of the five courts that may be compared on the basis
of average processing times, the Maryland court appears to be the fastest overall,
although New Mexico and the Ohio Eighth District resolve cases on their
•
31. See infra tbl.4-A.
32. See infra tbls.4-B, 4-C.
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summary calendars even more rapidly. Tables 4-B and 4-C indicate that the Ohio
Eighth District processes “non-merits” cases (cases that are disposed of prior to
full consideration by the court “on the merits”) very quickly. However, it is not
possible to compare these data to data from the other courts.
Of the three courts that report case processing times in comparison to the
ABA standards, the Maryland court is consistently the fastest by far in handling
appeals in both criminal and civil cases. Even though direct comparison of the
Ohio Tenth District with most of the other courts is not possible because of
differing report formats, Table 4-A shows that the Ohio Tenth consistently had
a smaller percentage of cases pending longer than the 210 days called for by state
guidelines than did the Ohio Eighth. While both Ohio courts appear to be
relatively fast, the Ohio Tenth District manages to get as many as seventy percent
of its cases decided within 210 days. The New Mexico Court of Appeals appears
to handle its summary calendar cases quite expeditiously, but takes considerably
longer with its regular fully-briefed appeals. The two Washington courts have
made progress in reducing their total processing times: from 1998 to 1999, each
reduced its total average time by almost five percent. While the times remain
lengthy, both courts lowered their total average processing times and Division I
brought its average processing time below eighteen months, an interim goal that
had been set when these courts began in 1997 to emphasize speedier resolution
of cases.33
The appellate process can be divided into several stages. Table 5 shows the
average times reported by five of the courts for four distinct stages of the process:
1. The filing of the notice of appeal to the filing of the record in the
appellate court.
2. The filing of the record to the completion of briefing (defined as the
filing of the appellee’s brief).
3. Completion of briefing to the submission of the case (if no oral argument
is held) or to the oral argument.
4. Submission or oral argument to decision by the court.34
The “time in stages” data shown in Table 5 is helpful in identifying ways in
which some of the courts seem to be functioning effectively and areas that clearly
need attention. Several points stand out.
First, preparation of the record (including the trial transcript) is clearly a
problem for most of the courts. Only the Ohio Eighth District Court has kept the
notice-to-record stage at an average of less than two months. For three of the
other courts, and for Maryland in civil cases, this stage takes between
approximately four and six months. Records on appeal in criminal cases in
Maryland, however, are prepared relatively expeditiously, averaging a little more
than two months.
Second, the courts vary widely in the time required for briefing. Maryland
and New Mexico manage to keep brief preparation to an average of three to four
months. While this is longer than court rules contemplate, it appears to be much
33. See discussion infra Part IV.
34. See infra tbl.5.
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shorter than the time consumed by briefing in the other courts.
Third, the period of time that cases are before the court (from completion of
briefing until decision [Stages 3 and 4 in Table 5]) varies widely. The Ohio
Eighth District judges decide cases very expeditiously, taking only slightly more
than a month after the case is argued or submitted to issue a decision. However,
in 1999, cases in that court took an average of over seven months between
briefing and submission. The Maryland court decides both civil and criminal
appeals rapidly. New Mexico handles the cases on its summary calendar very
quickly but cases on the regular calendar require an average of about seven
months from submission of briefs to decision.35
F. Common Problems and Issues: An Agenda for Change
In addition to obtaining reports on case processing times, project staff also
visited each of the six courts and conducted interviews with judges and court
staff members. Taking account of both the quantitative data and the information
and ideas obtained through interviews, it is possible to identify a set of problems
and issues that are common to most of the courts involved in this project and, in
all likelihood, to most state intermediate appellate courts. To some extent, the
problems can be categorized as falling into one of the several stages of the
appellate process. However, there are some issues that cut across all of the
stages and involve core issues of appellate court goals, leadership, organization,
and interrelationships with other components of the justice system and the larger
society. The following is a brief inventory of the key problems that emerged
from this study.
1. Problems in the Initial Stages of the Appellate Process.—One of the
perennial problems in appellate court administration has been the preparation of
the record. In order to prepare briefs for the appellate court, appellate lawyers
need to be able to review the transcript of previous proceedings in the trial court
and have access to other potentially relevant sections of the record, such as
pleadings, motions, decisions on motions, and exhibits. Although the technology
for very rapid transcription of court proceedings has existed for over two
decades, slow production of transcripts remains a major problem for appellate
case processing in most jurisdictions. Among the courts participating in this
study, only the Ohio Eighth District has succeeded in getting records filed in less
than two months.
35. During the period of this study, the Washington courts were in the midst of making major
efforts to reduce the time consumed during the stage from briefing to decision. A special study
conducted at the end of 1999 in the Division I Court disclosed, for example, that for cases set on
the December 1999 oral argument calendar, the time from completion of briefing to argument for
the seventy-fifth percentile case had been cut to 139 days (132 days in criminal cases and 143 days
in civil cases) from 255 days in 1998. Letter from Judge Faye C. Kennedy, Washington Court of
Appeals, Division I, to Richard B. Hoffman (Jan. 13, 2000) (on file with author). Both of these
courts recognized that they had serious backlog problems and have been revamping their
calendaring process and decisional routines to become current.
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In addition to the problems of slow transcript production, other problems in
the initial stages of case processing that are common to some or all of these six
courts include:
• delays in the appointment of appellate counsel for indigent defendants,
sometimes occasioned by the unavailability of public defenders;
• slow disposition by the trial court of motions to waive filing fees and settle
the record;
• poor quality of some audio or video tape records when those methods are
used for making a record of proceedings in the trial court; and
• delays within the office of institutional litigants (e.g., district attorney, public
defender, and attorney general) in transferring responsibility for cases from
the attorney who handled the case in the trial court to the attorney who will
be responsible for appellate litigation, including designation of portions of
the record.
2. Problems in the Briefing Stage of the Appellate Process.—The appellant’s
lawyer can sometimes begin preparing a brief even before the record is formally
filed with the appellate court, especially if there is no trial transcript involved.
Much more commonly, however, preparation of the brief does not begin until
after (sometimes long after) the record is filed.
There are two main problems that impede expeditious preparation and filing
of briefs. First, both in the offices of major institutional litigants, such as the
prosecutor and public defender, and in many small law offices, the attorneys
responsible for the appeals are (or feel) overloaded with work. Lack of resources
is a chronic complaint on the part of institutional litigants, and work overload is
very often a reason for requesting extensions of time to prepare and file briefs.
Second (and closely related to the institutional litigants’ shortages of appellate
lawyers), many appellate courts—including several of the courts in this
project—have relatively lenient policies on granting extensions of time. To some
extent, the leniency reflects the courts’ recognition of the time and resource
problems faced by the litigants. In some instances, it is also a reflection of the
courts’ own backlog problem—granting an extension for filing the brief means
one less case that the court must soon hear and decide.
3. Problems in the Court’s Calendaring and Resolution of Cases.—As Table
5 indicates, IACs vary widely in the speed with which they calendar and decide
cases once the briefs have been filed. While there are a myriad of reasons for
delays in these stages of the process, four broad categories of problems can be
identified:
• the lack of clear policies providing for expeditious scheduling of dates for
oral argument or submission of the case without argument;
• cumbersome decision-making and opinion preparation policies;
• lack of mechanisms for managing the decision-making process and holding
individual judges accountable for the prompt preparation of opinions for
which they are responsible;
• the reality that some cases are particularly complex, involving trial records
that need thorough review and contain difficult legal issues that must be
researched; and
• the existence of a large backlog of undecided cases.
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4. Issues of Court Goals, Leadership, Organization, and Interrelationships
with Other Justice System Components.—Although some of the problems in
appellate case processing are essentially mechanical or procedural (for example,
prompt production of trial transcripts and rapid appointment of appellate counsel
for indigent defendants), others involve basic questions about the responsibilities
of appellate courts and the relative importance to be accorded to competing
values that affect the work of judges and staff. These issues are addressed in
more detail in Parts III and IV. At this point, we simply list key topics and
questions that emerge from our research.
• Goals. What goals or standards, if any, should an appellate court have with
respect to the expeditious resolution of cases? To what extent should any
such goals (and, by extension, the responsibilities of the court) cover the
“pre-court” stages of record preparation and briefing?
• Leadership. What are (or should be) the responsibilities with respect to
expeditious case processing of appellate court chief judges, presiding judges
of panels, court clerks, chief staff attorneys, and others who hold formal
leadership positions in intermediate appellate courts? What are or should be
the responsibilities of others in key justice system leadership positions?
• Information. What types of information relevant to management of the
court’s caseload should court leaders routinely receive? How should they
use the information? What information should routinely be provided to the
bar, the public, legislative bodies, and the media?
• Policies and Procedures. What changes in policies and procedures are
needed to achieve the level of quality and expeditiousness that the litigants,
the bar, and the public deserve? To what extent can such changes be
accomplished by the intermediate appellate courts alone, without the
necessity of new legislation or action by the state’s supreme court?
• Technology. How can modern technological innovations be used to
markedly accelerate the generally slow pace of appellate litigation?
• Education and Training. What do appellate judges and staff members need
to know about effective caseflow management? How can they learn?
In the next two Parts—one focusing on uses of technology (Part III) and one
on the key elements of effective caseflow management (Part IV)—we examine
what can be learned from the experiences of the six courts involved in this
project and from other sources about practical strategies for improving appellate
caseflow management.
III. USING TECHNOLOGY TO IMPROVE APPELLATE CASEFLOW MANAGEM ENT
All six of the intermediate appellate courts in this study make some use of
modern technology to help with the management of caseloads and resolution of
cases. For example, all of the courts make use of electronic legal research
services, all have computerized management information systems, and all use email for at least some purposes, including circulation of drafts of opinions. To
date, however, none of them have been able to use modern technology to make
the kind of dramatic improvements in appellate case processing that are at least
theoretically possible. Commenting upon the limited use made of technology in
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most appellate courts, Philip Talmadge, a former justice of the Washington
Supreme Court, recently wrote that:
Many appellate courts are doing their work at the dawn of the
twenty-first century in a fashion not entirely dissimilar to the way they
were doing their work at the dawn of the twentieth. Appellate courts
process paper files physically transmitted to them by the trial courts.
Appellate judges and their staffs read paper briefs. Upon the publication
of a written opinion, the paper record is placed in physical storage. Too
often, because of resistance from attorneys, staff, and the judges
themselves, and because resources are unavailable to move to an
electronic environment, appellate courts have not utilized new
technology that can facilitate the business of those courts.36
This Part focuses on five modern technologies that, if used effectively (and
in combination with sound overall caseflow management strategies), could
markedly expedite the resolution of appellate cases. These technologies include:
• computer-aided transcription (CAT) to rapidly produce transcripts of trial
proceedings;
• electronic filing of trial court records and appellate briefs;
• videoconferencing;
• computer-based issue tracking; and
• computer-based management information systems.
A. Computer-Aided Transcription
Delays in the production of trial transcripts have often been cited as a
primary cause of slow appellate case processing.37 The development of
technology that will enable very rapid production of accurate transcripts holds
the potential for markedly accelerating at least the initial stages of appellate case
processing. Because there is at least some evidence that rapid completion of the
record preparation stage correlates with more expeditious overall case
processing,38 it seems likely that rapid transcript production will contribute to a
speedier overall appellate process.
The technology exists. As long ago as the mid-1970s, researchers at the
National Center for State Courts determined that computer-aided transcription
(CAT) was technologically feasible and could dramatically reduce delays in
transcript production.39 Since then, the technology has improved, costs of the
36. Philip A. Talmadge, New Technologies and Appellate Practice, 2 J. APP. PRAC. &
PROCESS 363, 363 (2000).
37. See, e.g., PAUL D. CARRINGTON ET AL., JUSTICE ON APPEAL 62 (1976); MARTIN &
PRESCOTT, supra note 8, at 28.
38. Cf. MARTIN & PRESCOTT, supra note 8, at 53 (discussing time “from ordering the record
to the filing of the last brief”).
39. See J. MICHAEL GREENWOOD & JERRY R. TOLLAR, EVALUATION GUIDEBOOK TO
COMPUTER-AIDED TRANSCRIPTION 2 (1975); J. MICHAEL GREENWOOD & JERRY R. TOLLAR, USERS’
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equipment have become much cheaper, the use of this technology has spread
widely through the court reporting field, and the skills of reporters using CAT
have improved markedly.40
CAT is a form of shorthand reporting that uses a computer to automate the
process of reading and translating stenotype notes into English. Court reporters
using the CAT technology record the words spoken in court by making
keystrokes on a stenotype machine that produces shorthand notes. In addition to
the notes appearing on the traditionally-used folded paper tape, the keystrokes are
also recorded on an electronic storage medium, such as a computer diskette. The
disk is then removed from the stenowriter and inserted into a computer’s disk
drive. Software then converts the stenographic notes into English text, allowing
spellchecking and editing functions to be performed. The software accesses the
reporter’s “dictionary” to carry out the translation. The transcript initially
produced through the computer may not be 100% accurate, but the reporter (or
“scopist” who assists the reporter) can quickly make any needed corrections.
Some court reporters have developed the capacity to provide what is called
“realtime” reporting—i.e., virtually simultaneous production of a stenographic
record, capable of being shown on a screen as it is being recorded by the reporter.
While useful in many contexts, realtime reporting is not essential for appellate
case processing. However, the ability to produce a usable typed transcript very
rapidly through the CAT technology should make it possible to prepare a
complete record, including the transcript, very quickly. With the transcript and
other portions of the record available in a matter of days (hours if there is
urgency), the record can be filed promptly with the appellate court, and appellate
lawyers can begin working on the appeal.
Although the potential of the CAT technology has been known for over
twenty years, appellate courts have taken little advantage of it. As the data in
Part II demonstrate, preparation and filing of the record is a very time-consuming
process in the intermediate appellate courts that participated in this project. Part
of the problem in most jurisdictions is that the court reporters work in and for the
trial court, and the IACs appear to have little control over the speed with which
the transcripts are produced. The problem is more one of system management
than of technology. Although numerous observers have called for appellate
courts to have and to exercise authority over preparation of the record (including
the transcript),41 these recommendations have thus far gone largely unheeded.
In many states, because of their lack of direct authority over the court
reporters, it may not be possible for the intermediate appellate courts to do much
by themselves to take advantage of the potential that CAT holds for rapid
transcript production. Clearly, however, there are strong public and justice
system interests in taking advantage of technologies that can greatly speed the
appellate process with no diminution in the quality of the work product. The
GUIDEBOOK TO COMPUTER-AIDED TRANSCRIPTION, at x-xi (1977).
40. See, e.g., WILLIAM E. HEWITT & JILL BERMAN LEVY, COMPUTER-AIDED TRANSCRIPTION:
CURRENT TECHNOLOGY AND COURT APPLICATIONS 21-23 (1994).
41. See, e.g., CARRINGTON ET AL., supra note 37, at 63.
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development of policies designed to ensure that transcripts needed for appeals are
produced rapidly is a process that is likely to involve many different groups and
individuals. The process is one in which state judicial leaders (e.g., chief justice,
supreme court, and state court administrator), as well as judges in the
intermediate appellate courts, bar leaders, trial court judges and administrators,
state legislators, and court reporters, can and should play constructive roles.
Additionally, policies will need to be developed to take into account the
potential for linking rapid transcript production to the availability of video
records of trial court proceedings. As more trial courts use video recording of
trial proceedings, appellate courts may expect parties to be able to present videos
of important trial segments, including their presentation at “oral” argument
accompanied by related CAT-prepared transcript displayed on an adjacent
screen.42
B. Electronic Filing of Records and Briefs
The trial transcript is an important component of the record on appeal, but
it is by no means the only component. The “clerk’s record” typically also
includes at least an index to the record, a chronological listing of all of the events
in the trial court, the pleadings of the parties, and any written decisions prepared
by the trial judge. It may also include motion papers filed in the trial court,
exhibits admitted or offered for admission into evidence, and other documents.
Typically, the preparation of the record is done by staff in the trial court
clerk’s office. The clerk’s office bundles either the original papers or a copy of
them, plus the transcript, in a file jacket or box and mails the package to the
appellate court clerk. The process is time-consuming, labor intensive, and
requires substantial mailing and storage costs. As Philip Talmadge has noted, the
implications of paper records for the work of appellate judges and their law
clerks or staff attorneys are significant:
No two appellate judges can work on the same case file simultaneously
unless the court has reproduced the whole record for each judge, an
expensive proposition. Moreover, for a voluminous record, the judge
and his or her staff do not have the luxury of keyword searches through
the record. Judicial personnel must rely on laborious treks through the
record, relieved only by the sketchy indices prepared by trial court staffs
and court reporters.43
42. This process has been under development at Courtroom 21 at the College of William &
Mary Law School in Williamsburg, Virginia, where Project Consultant Prof. Fredric Lederer
demonstrated it during a site visit in 1998. It should be noted that developments of this kind
present appellate courts with far more searching questions about the entire process. For example,
when video recording and transcript of actual trials may be viewed in the appellate courtroom or
in chambers, what will be the impact on the traditional appellate deference to finders of fact
regarding issues of credibility?
43. Talmadge, supra note 36, at 367.
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Increasingly, trial courts are using some form of electronic record keeping,
and there are strong indications that this trend will continue to accelerate. Some
appellate courts have begun accepting electronically filed records and briefs, but
none of the appellate courts in this project is systematically using e-filing
technology to produce more efficient case processing.
Electronic filing of trial court records in the appellate court is clearly feasible
when the trial court record itself is in electronic format. The use of electronic
records can contribute to more expeditious case processing and improved
appellate decision-making in several ways. These include:
• very rapid transmission of the record from the trial court, and of the
transcript from the court reporter, to the appellate court;
• much broader and easier access to the record by appellate judges, law clerks,
and staff attorneys—instead of being limited to access to a single paper file,
any judge or clerk can have access to the record at any time for purposes of
research; and
• enhanced capacity for appellate judges and those who assist them to search
the record rapidly for key pieces of testimony or exhibits, using browser and
keyword search technology.
Electronic filing of briefs is feasible and is now coming into use in some
appellate courts. E-filing of briefs saves time, printing costs, and mailing costs.
It provides the court and opposing counsel with briefs that can either be read
online or printed out in traditional format. Of particular relevance for the future,
when both the record and the briefs are in electronic format it is possible to
create hyperlinks between a brief and the portion of the record that is referenced
in the brief. Similarly, it should be possible to move easily between an electronic
brief and a case cited in the brief that is accessible through one of the widely
used electronic research services.44
The advantages to an appellate court of having briefs and records in an
electronic format are probably greatest in cases where the trial was lengthy and
paper records would be bulky and difficult to access. However, even in relatively
simple cases there should be gains in the efficiency of opinion preparation from
the virtually instantaneous linkages among briefs, records, and prior appellate
decisions that may be relevant precedents.
C. Videoconferencing
Videoconferencing—using video transmission to enable persons located in
different places to communicate by viewing each other on monitors while they
are speaking with each other—is another technology that has existed for some
time but is now becoming less expensive and more practical. Several appellate
courts have begun to put into place the equipment needed to allow persons to
44. For discussion of how one appellate court used electronic filing technology—in this case,
“CD-ROMs containing the briefs, clerk’s papers, trial exhibits, appendices, and transcripts”—for
a complex case that involved a paper record stored in approximately fifty banker’s boxes, see
Talmadge, supra note 36, at 368, 370.
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participate in court sessions or meetings through this process. For example, the
Supreme Court of Georgia now has video cameras in its courtroom in Atlanta and
monitors at each judge’s seat on the bench. Using the videoconferencing
technology, it is possible for lawyers from a distant part of the state to present
oral argument without having to travel to the central courthouse.
The increasing availability and decreasing costs of videoconferencing should
make this technology particularly attractive to appellate courts that have
jurisdiction over large geographic areas and to many of the lawyers who handle
appeals in those courts. Instead of having the lawyers travel to the court (or
alternatively transporting the judges and staff to a distant location), the court and
the lawyers can conduct oral argument on an appeal or motion via
videoconference.
Technologically, it is not even essential for all of the judges to be in the same
location. Judges who are not at the central courthouse can participate in the oral
argument via video links. Subsequently, they can confer via videoconference
with their colleagues on a panel concerning the decision and opinion.
For purposes of appellate caseflow management, the principal potential
advantage of videoconferencing is increased flexibility in scheduling oral
arguments before a panel and in conducting conferences among the judges.
There is so far no evidence that videoconferencing will really reduce delays, but
there has not yet been any extensive use of this technology. There is at least the
prospect that, in addition to reducing travel costs, videoconferencing can save
time for judges and staff to use for research and other activities that will help
bring cases to resolution expeditiously.
D. Computer-Based Issue Tracking
Computers, programmed with appropriate qualitative analysis software, can
be used to help appellate courts identify cases that involve fact patterns and legal
issues that are identical or closely similar to ones in cases previously decided by
the court; or similar to the fact patterns and legal issues in other cases currently
pending in the court.
In cases where the fact patterns and legal issues are closely similar to those
in a case or set of cases previously decided by the court, there is ordinarily no
reason for an intermediate appellate court to depart from previously existing
caselaw. Unless one party presents persuasive reasons for reconsideration of the
prior ruling, it should be possible to resolve the issues (and often the entire case)
very quickly.
Sometimes multiple cases involving the same or closely similar fact patterns
and legal issues reach an appellate court at approximately the same time. In these
circumstances, computer-based issue tracking can enable the court to identify the
cases and group them together for consideration by a single panel. Such
grouping or clustering of cases enables the judges on the panel to gain the benefit
of oral presentations and briefs written by several different lawyers and can give
them a sense of the range of fact patterns that can be affected by decisions in the
cases. Often the cases can be resolved by issuance of an opinion in a lead case.
That opinion can then be applied to the remaining cases that have basically
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similar fact patterns and legal issues, and these can be decided in a summary
fashion. This approach enables appellate courts to make more efficient use of
judicial resources and reduces the likelihood of inconsistent decisions by
different panels.
E. Computer-Based Management Information Systems
In their 1990 study of case processing in four intermediate appellate courts,
Chapper and Hanson noted that the courts they studied had generally done a
mediocre or poor job of organizing information systems to provide information
upon which appropriate management decisions concerning case processing could
be based.45 The effective design and use of information systems by appellate
courts clearly remains an important issue for these intermediate appellate courts
a decade later.
Good information about the details of individual cases and about overall
caseloads is essential both for case-level decision-making at every stage of the
appellate process and for management of the total business of the appellate court.
Information about individual cases—for example, the date of the trial verdict or
other lower court decision, the date the notice of appeal was filed, the nature of
the case, the parties involved, the lawyers, the issues raised, and the length of the
record in the court below—enables the appellate court to make decisions about
whether the case is likely to be appropriate for accelerated disposition and
whether it should be clustered with other cases for resolution by a single panel.
Case-specific information is also needed for scheduling cases for argument,
assigning cases to panels, and notifying the attorneys (or pro se litigants) about
the dates for completion of briefing and oral argument.
Chief judges, clerks of appellate courts, and chief staff attorneys have
responsibility for overall caseloads (or, in some circumstances, for major
segments of caseloads), and thus need aggregate data on cases and caseloads,
organized in a useful fashion. It is our sense that much of the data needed for
effective caseflow management is currently stored in the automated information
systems of most appellate courts, but the information is not made available to
court leaders in a useful and usable form; and/or available but simply not used
for monitoring, analysis, problem identification, and planning purposes.
Computer-based management information systems can be enormously
valuable in storing data needed for individual case decision-making and for
overall caseflow management. These information systems cannot, of course,
manage caseloads by themselves. They can, however, be designed to produce
management information reports that can be used by appellate court leaders to
monitor the performance of the court in relation to performance goals and to
identify problems that may arise in any stage of the appellate process. Based
upon such information, chief judges and other leaders can take steps to address
the problems and design effective caseflow systems.46
45. See CHAPPER & HANSON, supra note 2, at vii-viii, 61-62.
46. Computer-based management information systems and several of the other technologies
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IV. COM PONENTS OF EFFECTIVE APPELLATE CASEFLOW MANAGEM ENT
Researchers studying appellate case processing have argued that concepts
and principles of caseflow management developed through experience in trial
courts have direct relevance to appellate case processing. This Part draws upon
information acquired in the course of our study of six intermediate appellate
courts, together with insights from earlier research in both trial and appellate
courts, in seeking to develop a framework for future work on improving caseflow
in appellate courts.
A. The Importance of Adequate Resources
Researchers who previously studied appellate case processing have come to
somewhat differing conclusions about the importance of resources for appellate
caseflow management. Martin and Prescott, who conducted a study of volume
and delay in ten appellate courts, reported in 1981 that as the number of filings
per judge increased there was “a moderate to strong tendency for case processing
time . . . to decrease.”47 They did not, however, examine the number of filings
in relation to total judicial resources available (i.e., including law clerks, staff
attorneys, and judicial officers such as magistrates, in addition to judges) in
conducting their study.
Roger Hanson, examining data on 1993 case processing times in thirty-five
intermediate appellate courts supplemented by results from a survey of judges
and court staff members in those courts, concluded that the principal factor
influencing timeliness is resources—specifically, the number of judges and law
clerks in relation to the number of filings.48 While acknowledging that “[b]asic
principles of modern management did appear to encourage timeliness,”49 he
argued that resources are the key determinant of expeditious appellate case
processing.
Due to the lack of comparable measures of case processing times in all of the
six courts in this study, it is not possible to draw any firm conclusions about the
relative importance of resources vis-à-vis management in influencing the
expediency with which the courts resolve cases. Of the six courts in this study,
the fastest—the Maryland Court of Appeals—has slightly more resources (i.e.,
judges and the combination of judges, other judicial officers, law clerks, and staff
attorneys) in relation to total filings than do four of the other courts. However,
the differences are not great. Other factors are clearly at work. In seeking to
develop knowledge about other factors that may be relevant, it is useful to
examine what has been learned through the study of trial courts. While appellate
courts differ significantly from trial courts, many of the basic caseflow problems
discussed in this Part are examined in greater detail in Appendix A, which also includes more
specific description of some of the processes involved.
47. MARTIN & PRESCOTT, supra note 8, at 37 (emphasis in original).
48. See Hanson, supra note 20, at 43.
49. Id. at 35.
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and issues—and, potentially at least, the components of a general strategy for
reducing delays and managing caseloads effectively—are likely to be similar.
B. Key Elements of Sound Appellate Caseflow Management
One of the particularly useful insights in Martin and Prescott’s 1981 study
of appellate case processing was that different perspectives on the causes of
appellate caseflow problems are likely to lead to different responses. Martin and
Prescott observed that approaches developed in response to a perspective that
emphasizes the importance of case volume as the principal determinant of delay
typically involve either adding resources; or restructuring existing resources,
generally by selecting categories of cases for different types of consideration.50
The alternative perspective identified by Martin and Prescott is one that
emphasizes processing and management inefficiencies as the primary
determinants of delay. The programmatic approaches developed in response to
this perspective recognize that volume is a factor, but they tend to address
processing time directly by seeking to increase productivity—typically by
introducing new technologies or by adopting procedural changes aimed at
streamlining some stages of the appellate process.51
The components of caseflow management outlined here encompass both
general categories of approaches. This perspective recognizes the need for
adequate resources but focuses particularly on how the resources are used. The
primary emphasis is on what, specifically, appellate courts and others who are
involved in (or have stakes in) effective appellate caseflow can do to improve
system operations.
One of the striking findings from empirical research on caseflow
management and delay reduction at the trial court level is that there is no one
single model of a successful delay reduction program or caseflow management
system.52 Successful trial courts have had varying levels of available resources,
are organized in many different ways, use a variety of different procedures and
case assignment systems, and differ considerably in the extent to which they use
modern computer technology. Despite these differences, however, successful
trial courts share some common characteristics. Perhaps most importantly,
successful courts and programs are relatively comprehensive. Rather than
seeking a “one-injection miracle cure,” jurisdictions that have succeeded at
caseflow management at the trial court level have incorporated a number of
different components into their systems and have refined and maintained the
systems through hard work.53
50. MARTIN & PRESCOTT, supra note 8, at 7-9.
51. Id.
52. See, e.g., DAVID C. STEELMAN ET AL., CASEFLOW MANAGEMENT: THE HEART OF COURT
MANAGEMENT IN THE NEW MILLENNIUM 87 (2000); Barry Mahoney & Dale Anne Sipes, Toward
Better Management of Criminal Litigation, 72 JUDICATURE 29, 35 (1988).
53. BARRY MAHONEY ET AL., CHANGING TIMES IN TRIAL COURTS 197 (1988); see also
Maurice Rosenberg, Court Congestion: Status, Causes, and Proposed Remedies, in THE COURTS,
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It is at least a reasonable hypothesis that the same generic elements that have
been found to be important for effective case processing in trial courts are also
likely to be important for effective case processing at the appellate court level.
This section of the report discusses the operations of intermediate appellate
courts in light of the same ten key elements of effective caseflow management
in trial courts that successfully reduce or prevent delays.54
1. Leadership.—In studies of corporate innovation and excellence, as well
as of courts and criminal justice agencies that succeed in attaining significant
goals, leadership emerges as a critically important factor. In their classic study
of excellence in the corporate world, for example, Peters and Waterman found
that “associated with almost every excellent company was a strong leader (or
two) who seemed to have had a lot to do with making the company excellent in
the first place.”55 Similarly, when practitioners in successful trial courts were
asked about reasons for the court’s effectiveness, “one of the most frequent
responses was a reference to the leadership ability of the chief judge.”56 The
specific leadership qualities mentioned in this context varied, but generally
included reference to the chief judge’s “vision, persistence, personality,” and
leadership skills.57
In the concluding chapter of their 1990 study of four intermediate appellate
courts, Chapper and Hanson noted that the relative merits of having a permanent
chief judge as opposed to a rotation system (with chief or presiding judges
serving terms of only one or two years) could not be established by their
research.58 They observed, however, that there is at least one clear advantage to
having a permanent chief judge: he or she can provide a focus and continuity for
policy development and implementation.59
Of the six courts participating in this study, only one—the Maryland Court
of Special Appeals—has a permanent chief judge. While not conclusive on the
relative merits of permanency (or long tenure), it is worth noting that the
Maryland court is relatively speedy, and the chief judges of the court have been
consistent in emphasizing expeditiousness.60 The principal procedural innovation
PUBLIC, AND THE LAW EXPLOSION 29, 55 (Harry W Jones ed., 1965). On the basis of the
evidence available in 1965, Rosenberg was emphatic in rejecting the notion of a “one-injection
miracle cure” for problems of court backlogs and delays. He noted that only a few of the “delay
antidotes” that had been developed during the 1950s and early ‘60s had worked to even a modest
extent and that some had been counter-productive. Rosenberg’s observation that “progress in
coping with the old problem of court delay will have to come from marshaling relief measures in
groups” has proven to be accurate. Id. at 55.
54. The analytical framework is adopted principally from the concluding chapter of
MAHONEY ET AL., supra note 53, at 197-205.
55. THOMAS J. PETERS & ROBERT H. WATERMAN, JR., IN SEARCH OF EXCELLENCE 26 (1982).
56. MAHONEY ET AL., supra note 53, at 198.
57. Id.
58. CHAPPER & HANSON, supra note 2, at 58.
59. Id.
60. For a discussion of the role of the chief judge of the Maryland Court of Appeals, see id.
THE
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that many regard as key to its relative speed is one that was introduced by a
former long-serving chief judge and kept in place after his departure: a
calendaring rule that sets each newly filed case for argument or submission
during a specific month at the time the record is filed.
According to Chapper and Hanson, “[h]aving a permanent chief or presiding
judge will not ensure the successful adoption and introduction of procedural
changes, but it can ensure the continuity of leadership and commitment that is
required where a permanent modification of established practices and behavior
is involved.”61 While there are certainly risks in providing for a permanent chief
(or one with a lengthy term), it seems likely that a longer term enables a chief
judge to acquire in-depth knowledge about the caseflow problems faced by an
appellate court, provides time to marshal the needed resources, and makes it
possible to persist in initiating and implementing needed innovations.
2. Goals.—Meaningful goals are integral to effective caseflow management
systems.62 In the absence of clear goals, practitioners—lawyers, court staff, and
judges—have no way of knowing what is an appropriate maximum period of time
for the stages of a case and no way of measuring their own (or the court’s)
effectiveness in managing their caseloads.
Nationally, the best-known time standards are those incorporated in the
American Bar Association’s Standards Relating to Appellate Courts. Originally
adopted in 1976, the ABA time standards have been modified (most recently in
1994) to make them less stringent than the original standards. The current
version of the ABA standards calls for seventy-five percent of all appeals to be
resolved within 290 days and ninety-five percent to be resolved within one year.63
Some state appellate courts—including at least four of the courts in this
study—have adopted some type of time standards. The standards themselves
vary considerably and, importantly, sometimes do not address stages of the
appellate process prior to submission or argument.
Of the six courts in this study, the time standards for the two Ohio courts
were set by that state’s supreme court: generally, with a few exceptions, cases
are to be disposed of within 210 days.64 This is a more ambitious goal than those
set by the ABA’s standards, but the Ohio Tenth District Court of Appeals
at 93, 98.
61. Id. at 58.
62. The ABA Standards cite the lack of clear goals as a significant cause of delay. See
JUDICIAL ADMIN. DIV., AM. BAR ASS’N, supra note 22, § 3.50 and accompanying commentary; see
also RITA M. NOVAK & DOUGLAS K. SOMERLOT, DELAY ON APPEAL (1990).
63. JUDICIAL ADMIN. DIV., AM. BAR ASS’N, supra note 22, § 3.52(d). It should be noted that
the time frames in this section are specifically described as “reference models” to which appellate
courts should accord serious consideration when formulating time standards for themselves. For
a discussion of the history of these standards, see id. § 3.52(d) cmt.; see also Carl West Anderson,
An Appeal for Practical Appellate Reform, 37 JUDGES’ J. 28, 29-31 (1998).
64. OH. SUP. R. 39(A) (Anderson 2001). “The time limits for disposition of appellate and
civil cases shall be as indicated on the Supreme Court report forms.” Id. The report forms, copies
of which are in the authors’ files, incorporate this 210 day standard.
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appears to meet the ABA standards and comes close to satisfying those set by the
Ohio Supreme Court. Division I of the Washington Court of Appeals began its
current effort to reduce the lengthy time from filing to decision by aiming to
decrease that time period to eighteen months over an eighteen-month campaign.65
The New Mexico Court of Appeals established time standards in 1999 and
recently readopted them. The goals are to dispose of fifty percent of all cases
within 180 days (six months) of the filing of the appeal, seventy-five percent
within 365 days (one year), ninety-five percent within 540 days (eighteen
months), and the remaining five percent as expeditiously as possible in
consideration of the length of the record and complexity of issues. For each
judge, the goal is to file an opinion in fifty percent of the cases assigned within
ninety days (three months) of submission, seventy-five percent within 150 days
(five months), ninety-five percent within 300 days (ten months) and the
remaining five percent as expeditiously as possible.66
3. Information.—Appellate court leaders who are seriously interested in
improving caseflow management in their courts will place a high premium on
ensuring that timely and accurate information is available, both for case-level
decision-making and for overall caseload management.
Case-level information is needed at every stage of the process. At the initial
filing in the appellate court, for example, it can be enormously valuable for the
court to gain immediate knowledge about the nature of the case, the issues on
appeal, and the length of the trial record, as well as accurate information about
the identity of the trial judge, the court reporter, and the parties and lawyers
involved. Such information enables the appellate court to make early decisions
about putting the case on a particular “track” (such as the type of summary
calendar used for accelerated disposition of cases in the New Mexico Court of
Appeals) and provides information needed to monitor completion of the record
and briefing stages of the process.
Aggregate data on the court’s total caseload and on the court’s effectiveness
in handling all of the major segments of its caseload is needed by court leaders
to monitor performance, identify problems, and develop plans for addressing the
problems. Unfortunately, one of the key conclusions of Chapper and Hanson’s
1990 study of four IACs remains accurate today: “The unavailability of
information on caseload composition, attrition rates, and case processing time
inhibits clear problem identification and choice of promising solutions.”67
Four types of aggregate information are especially important for management
of an appellate court’s overall caseload and its caseflow process:
a. Information on pending caseloads.—Operationally, information on
pending cases is of great importance in assessing the effectiveness of an appellate
court’s caseflow management system. Good information on pending caseloads
65. This initiative was discussed by the then-civil judge at a meeting with one of the authors
in 1998.
66. NEW MEXICO COURT OF APPEALS’ POLICIES AND PROCEDURES MANUAL §§ IV(2)&(3)
(2001).
67. CHAPPER & HANSON, supra note 2, at vii.
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provides a picture of the current workload of the court organized by major case
type (e.g., civil appeal or criminal appeal) and, within each case type, by age and
case status. It also indicates how many cases (and which ones) are exceeding the
court’s time standards and makes it possible to flag cases that need attention.
If the court has a backlog problem, the pending caseload information should
show the dimensions of the problem and enable court leaders to develop plans
to address it. Pending caseload data is relevant to each stage of the appellate
process and is obviously most useful when the court has standards that address
the time appropriate for each stage. With information about the number of cases
pending over the time standard and the ability to identify which ones are “too
old,” court leaders can initiate action to get the judge or attorney responsible for
completing this stage of the appellate process to do the needed work.
b. Information on the age of disposed cases.—By definition, information on
cases that have reached disposition is historical information. It can, however, be
extremely valuable for purposes of appellate caseflow management for two main
reasons:
• It enables an assessment of the court’s recent performance with its own time
standards, with national time standards, with the performance of other courts
that have similar caseloads, and with its own prior performance.
• When broken down by case type, the nature of the disposition, and stage of
the process at which disposition occurs, it can be very valuable in the
diagnosis of caseflow problems and the design of workable solutions. For
example, this type of information can be the basis for construction of a “fallout chart” that shows the time required for different types of cases and the
stage of the process at which disposition occurs. It should then be possible
to identify patterns with respect to the types of cases that tend to fall out
early, that are handled summarily, and that tend to go to full opinion. With
such information in hand, appellate courts can develop “differential case
management (DCM)” systems that make more effective use of limited
resources.68
As with pending caseload information, it is important to be able to break
information on the age of cases at disposition into relevant categories and subcategories in order to use it effectively. With such information it is possible, for
example, to identify particular categories of cases that take extraordinarily long
periods of time in some stages of the process. It is then possible to ask why
certain categories of cases take much longer than seems necessary or appropriate.
Asking and answering these types of questions is a critical first step in
developing strategies to reduce or minimize delays.
c. Information on continuance practices.—One measure of the effectiveness
of a court’s caseflow management system, at both the trial and appellate levels,
is the percentage of events that take place on the date scheduled. In appellate
68. For a discussion of the concept and techniques of differentiated case management, see
JUDICIAL ADMIN. DIV., AM. BAR ASS’N, supra note 22, § 3.50 and accompanying commentary; see
also STEELMAN ET AL., supra note 52, at 5-8; Holly Bakke & Maureen Solomon, Case
Differentiation: An Approach to Individualized Case Management, 73 JUDICATURE 17 (1989).
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courts, key dates include those set by statute or rule for the filing of records and
briefs, and logically could also include dates set for oral argument or for
completion of an assigned opinion by a judge. Information needed to calculate
continuance rates (and to ascertain the length of extensions of time when
continuances are granted) should be readily obtained from court records.
d. Trend data on filings and dispositions.—Information on annual filings
and dispositions is relatively easy to collect and report and is commonly available
for all appellate courts. This information provides a rough picture of the court’s
overall workload and an indication (by comparing dispositions with filings) of
whether the court is keeping up with its workload. Data on filings and
dispositions can be more useful, however, when it is broken down into major
categories and sub-categories of case types and types of dispositions; and it is
available over a long period of time. Having such data for an extended period of
time enables analysis of trends in the court’s workload and productivity. It can
be helpful in identifying changes in the workload and in decisional practices, in
assessing whether the court is gaining or losing ground, and in serving as a
starting point in developing plans for improvements.
4. Communication.—One of the clear lessons from research and
experimentation on court and justice system operations is that “good
communications and broad consultation . . . are essential if a program is to
succeed.”69 In the case of appellate courts, good communications within the
court are especially important because of the collegial nature of an appellate
court, the need to develop agreement among at least a majority of the judges on
a panel for decisions in cases, the need for support from at least a majority of the
full bench for major changes in policy and practice, and the key roles played by
staff in the clerk’s office and by central staff attorneys and law clerks in the dayto-day work of the court. Good communications with those outside the
court—especially the practicing bar (at least those who are engaged in appellate
practice, including those who head the appellate sections of major institutional
litigants such as an attorney general’s office), trial judges, and trial court clerks
and court reporters—are also important.
Because the appellate process is not entirely under the control of the
appellate court, the cooperation of those outside the court is essential for
significant improvements to be made. It is appropriate for leadership to come
from within the appellate court. However, in order to identify problems and
develop workable solutions, it will be necessary to have the active involvement
of those responsible for each of what have sometimes been called the three basic
functions of appellate courts: the administrative function (record preparation,
including production of the transcript); the lawyer function (briefing and
presentation of oral argument); and the judicial function (decisionmaking,
including the processes of hearing oral argument and preparing opinions).70
69. MAHONEY ET AL., supra note 53, at 200-01; see also NOVAK & SOMERLOT, supra note
62, at 17-18, 139.
70. See, e.g., Carl West Anderson, Are the American Bar Association’s Time Standards
Relevant for California Courts of Appeal?, 27 U.S.F. L. REV. 301 (1993).
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The need for good communication goes beyond those who are directly
involved in the appellate process. Good communication with state judicial
leaders (particularly the chief justice, state supreme court, and state court
administrator’s office) is important in addressing issues that are beyond the
immediate control of the IAC (such as budgetary issues). Similarly, it is
important to cultivate good communication with the legislature, which ultimately
holds the purse strings for the courts and can shape the nature of the court’s
caseload and many of the procedures it follows.
5. Caseflow Management Policies and Procedures.—As Chapper and
Hanson noted in 1990, “[t]he principles of case management distilled from trial
court experience have clear parallels in appellate case processing.”71 Indeed, the
first edition and every subsequent edition of the ABA Standards Relating to
Appellate Courts has included sections on caseflow management. The primary
concept, expressed as a “general principle” in the ABA Standards, is that “[a]n
appellate court should supervise and control the preparation and presentation of
all appeals coming before it.”72 Caseflow management policies and procedures
that flow from this principle are listed below.
a. Appellate court supervision of the record preparation stage.—
• a requirement that the appellate court receive notice of an appeal being
taken at or before the time the notice of appeal is filed in the trial court;
• prompt filing with the appellate court of a docketing statement or other
statement providing basic information about the appeal, including: the
caption; the file number in the trial court; the name of the trial judge; the
names, addresses, and phone numbers of the attorneys (and of the parties
if one or more is self-represented); the nature of the case; the result in
the trial court; the issues on appeal; the length of the trial (and/or
approximate length of the trial transcript); and any reasons why the case
should be placed on a track for accelerated consideration or other special
handling;
• a requirement that appellate counsel file their designations of record with
both the trial court and the appellate court;
• provision for rapid resolution of any issues concerning appellate court
filing fees, eligibility for counsel, or proper contents of the record on
appeal;
• procedures enabling prompt appointment of appellate counsel for
indigent defendants in criminal cases;
• a requirement that counsel order the transcript from the court reporter
within a short period following the filing of the notice of appeal;
• provision for the use of a court reporting technology that is capable of
producing a trial transcript within no more than seven days after the
conclusion of a trial. (Note that this technology could be either a court
reporter using computer-aided transcription or another technology that
has been shown to be capable of routinely producing a record that is
71. CHAPPER & HANSON, supra note 2, at vii.
72. JUDICIAL ADMIN. DIV. AM. BAR ASS’N, supra note 22, § 3.50.
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accurate and easily usable—by the parties, their lawyers, and the
appellate court’s judges, law clerks, and staff attorneys—within a short
time frame);
• establishment of a court rule prescribing short periods of time for the
production of trial transcripts after the date they are ordered by the
counsel for the appellant, with a requirement that the ordering statement
be filed with both the trial court and the appellate court;
• provision for prompt payment of court reporters who produce transcripts
for indigent appellants in criminal cases;
• use of electronic transmission of all or major portions of the record from
the trial court and/or the court reporter to the appellate court whenever
possible;
• use of computer-based management information reports to enable
monitoring of compliance with time standards, court rules, and policies
concerning prompt preparation of the record; and
• designation of an appellate court judge and/or senior staff person to
monitor compliance with record preparation procedures and time
requirements, identify problems, and develop workable solutions to
improve record preparation.
b. Appellate court scheduling of cases and monitoring of the briefing
process.—
• use of a docketing statement and/or other information furnished to the
court at the initiation of the appeal, to assign the case to an appropriate
track for briefing and submission, consistent with the complexity of the
case and the nature of the issues presented by the appeal;
• issuance of a briefing schedule not later than the time the record is filed
(may be done earlier if the docketing statement shows reason for an
accelerated schedule);
• monitoring and enforcement of schedules set for the submission of
briefs, with recognition that there may sometimes need to be short
extensions of time for good cause shown;
• provision for submission of briefs prepared using up-to-date word
processing or publishing software; elimination of requirements for
printed briefs;
• use of electronically filed briefs when feasible;73
• calendaring of cases for argument or submission done not later than the
date the appellant’s brief is filed (may be done sooner if information in
the docketing statement indicates that the case is appropriate for
accelerated consideration);
• policy of setting cases for argument or submission after the appellant’s
brief is filed and within a short time (e.g., within one month) after the
73. The U.S. Securities and Exchange Commission now requires many documents to be filed
electronically on its EDGAR (Electronic Data Gathering, Analysis, and Retrieval) system unless
a hardship claim is made. Filing can include submission of a diskette as well as dial-up or Internet
filing.
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date the appellee’s main brief is due;
use of computer-based management information reports to enable
monitoring of attorneys’ compliance with briefing schedules;
• use of reminder notices and, if necessary, appropriate sanctions for noncompliance with briefing schedules; and
• designation of an IAC judge and/or senior staff person to monitor
compliance with briefing schedules, identify problems, and work with
attorneys to develop effective systemic solutions.
c. Appellate court decision-making and opinion preparation.—
• organization of the appellate court to enable speedy decisions on
motions;
• organization of the appellate court to enable optimum allocation of
judicial and non-judicial resources available to conduct legal research
and preparation of decision memoranda and opinions;
• assignment of responsibility to a panel of presiding judges for production
of opinions (including any dissents) within an acceptable period of time
following argument or submission of cases, consistent with time
standards adopted by the court;
• use of computer-based management information reports to monitor the
effectiveness of judges (and others, where appropriate) in meeting the
court’s time standards for completion of the decision/opinion preparation
process;
• regular meetings of the judges at which reports on the effectiveness of
the court and of individual judges in meeting time standards and other
performance goals are discussed, problems are identified and plans are
developed for appropriate action to address the problems; and
• leadership by the chief judge in emphasizing the commitment to
expeditious resolution of appeals.
Most of the caseflow management policies and procedures listed immediately
above have been recommended by others;74 there is little that is new in the list
aside from some of the items relating to use of modern technology (e.g.,
electronic filing of briefs and records). Some of these mechanisms are in place
in some of the courts involved in this project. What is not in place in any of
these six courts, however, is a comprehensive set of policies and procedures that
ensures effective goal-oriented supervision of all stages of the appellate process
by the IAC.
6. Judicial Responsibility and Commitment.—“The effort has to come from
the court itself, the judges deciding the appeals. They are the ones who have it
within their power to effect the necessary changes.”75 This observation, from a
thoughtful lawyer who was the presiding judge of a busy intermediate appellate
court for over a decade, gets to the heart of the challenge confronting those who
•
74. See, e.g., CARRINGTON ET AL., supra note 37, 225-31; JUDICIAL ADMIN . DIV . AM. BAR
ASS’N, supra note 22, §§ 3.50-.51 and accompanying commentary; NOVAK & SOMERLOT, supra
note 62.
75. Anderson, supra note 63, at 64-65.
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press for a more expeditious appellate process. If appellate courts are going to
introduce significant innovations, the changes must be acceptable to—and have
the support of—a critical mass of the court. The history of the Ohio Eighth
District, as originally documented by Martin and Prescott, shows how a court can
decide to change its culture to one promoting expeditious decision making.76 In
the same vein, the recent action of the Washington courts in setting goals to
reduce what were very lengthy time periods from filing to decision also
demonstrates the significance of the judges of a court deciding as a group to
confront this challenge.
It is also clear that continued acceptance of judicial responsibility and
consequent commitment to speedy processing of appellate cases must become
integral to a court’s culture. The experience of the Maryland Court of Special
Appeals confirms the accuracy of this axiom. A former chief judge urged the
court to take on this challenge; the current chief judge expends great effort in
performing key functions such as screening cases to make sure that the court
keeps pace with its caseload, and the other active judges participate in the
process by focusing on resolving cases expeditiously. The emphasis on prompt
disposition of appeals has become a part of the culture of the Maryland court.
As one judge put it recently in an interview with one of the authors, “this is the
way we do it.”
7. Staff Involvement.—One of the most significant trends during the past two
decades has been the development of professional administrative and staff
support in state intermediate appellate courts.77 Court administrators, clerks of
court, and chief staff attorneys play increasingly vital roles in the leadership and
management of appellate courts. Most IACs now have a significant complement
of central staff attorneys in addition to the judges’ own clerks.78 Additionally,
some IACs use judicial officers who are not full-fledged judges—for example the
commissioners in the two Washington courts and the appellate magistrates in the
Ohio Tenth District—to handle some categories of cases or some stages of some
appellate proceedings.79
Appellate courts have organized the use of non-judge resources in different
76. John A. Martin & Elizabeth A. Prescott, VOLUME AND DELAY IN THE OHIO COURT OF
APPEALS, EIGHTH DISTRICT (1980).
77. See Joseph R. Weisberger, A Profile of Appellate Staff: A Survey, 24 JUDGES’ J. 31
(1985).
78. The growth of staff resources has paralleled the growth in volume in appellate courts in
the past three decades. One of the strategies recommended by those concerned about appellate
justice in the 1970s was the development of a staff of attorneys who serve the court as a whole to
assist in tasks such as screening newly filed cases, assigning cases to different “tracks,” and
preparing memoranda and proposal decisions on cases. See generally CARRINGTON ET AL., supra
note 37, at 44-55; DANIEL J. MEADOR, APPELLATE COURTS: STAFF AND PROCESS IN THE CRISIS OF
VOLUME (1974); NOVAK & SOMERLOT, supra note 62, at 115-16. ROGER A. HANSON ET AL., THE
WORK OF APPELLATE COURT LEGAL STAFF (2000), contains extensive information regarding the
varied ways in which these attorneys are now being used by their courts.
79. See discussion supra Part II.
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ways. The New Mexico Court of Appeals, for example, has a larger central staff
attorney complement than any of the other five courts in this study, but fewer law
clerks per judge than any of the other courts.80 The types of assignments given
to central staff attorneys and to judges’ law clerks vary across the courts. Little
is known about the relative merits of different ways of organizing these
resources, but it seems clear that they are important to the functioning of all of
the courts. How they are used—in particular, how their functions are related to
the performance goals of the courts—appears to be an important issue on which
further research would be useful.
8. Education and Training.—If an appellate court is to manage its caseload
successfully, both the judges and the court staff need to know what goals to strive
for, why these goals are sought, what is expected of them individually, and how
to perform their duties effectively. Educational programs on managing appellate
caseloads have been offered sporadically by national organizations, but there has
not been a sustained national effort. Three national membership organizations
offer annual educational seminars that sometimes include sessions relating to
appellate caseflow management—the Council of Chief Judges of Courts of
Appeals, the National Conference of Appellate Court Clerks, and the Council of
Appellate Staff Attorneys (all three receiving principal support for their
educational programs from the American Bar Association’s Appellate Judges
Conference). However, many IACs (including the six in this study) have relied
on in-state judicial conferences and other similar programs that rarely have
focused on expeditious case processing as a core topic. The new database
established by the Judicial Education Reference, Information and Technical
Transfer (JERITT) Project, the national clearinghouse for information on
continuing judicial branch education,81 appears to contain no references
specifically on appellate caseflow management. Much of the progress that has
been shown during the past decade dates to participation by several IACs in the
ABA’s appellate justice project (conducted in 1988-1990) that produced the
Delay on Appeal volume.82
9. Mechanisms for Accountability.—If appellate caseflow is to be managed,
someone must be responsible for the management, and there must be clarity
about what is expected from the person(s) with management responsibility.
Accountability requires clear goals or standards by which to assess performance;
information that can be used to monitor performance in relation to goals; an
expectation that performance will in fact be monitored by someone in authority;
and a sense that there will be some recognition of (and reward for) good
performance and negative sanctions for poor performance.
The two Ohio courts have been operating in a landscape in which some
80. See discussion supra Part II; infra tbls.1, 2.
81. The database can be found at http://jeritt.msu.edu (last visited Jan. 28, 2002).
82. See Anderson, supra note 63 (discussing the key role played by the ABA’s appellate
justice project in stimulating successful delay reduction efforts). The work of the project is
described in NOVAK & SOMERLOT, supra note 62.
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degree of accountability has been established by the state’s supreme court.83
Those courts (and all of the other appellate and trial courts in Ohio) provide
monthly reports to the supreme court on the extent to which they are in
compliance with applicable case processing time standards. Additionally, the
judges of the Ohio Tenth District have developed time guidelines for opinion
drafting: thirty days for a simple case, sixty for a complicated one, and ninety for
a truly complex appeal. A monthly report to all judges recaps all pending cases
and contrasts the actual time to the judge’s estimated time. The New Mexico
Court of Appeals, as noted earlier, adopted standards for opinion completion.84
Another form of accountability is provided by an ancient mechanism that has
sometimes been perceived as a restrictive force in court administration—the term
system. Perhaps the best known example of an appellate court deciding all
pending cases by the end of its current Term is the U.S. Supreme Court. While
neither that court’s jurisdiction nor its use of terms is directly comparable to that
of any other appellate court, the idea of completing work on all pending cases
within a defined period retains currency. Many appellate judges, for example,
remind law clerks hired for one year that they are expected to complete work on
all cases assigned to them before the end of their term of employment. The
Georgia Court of Appeals adheres strictly to a state constitutional requirement
that every case be disposed of during the term for which it is entered on the
court’s docket for hearing. Dorothy Beasley, a former chief judge of that court,
credits this policy with being “the most important factor,” in the Georgia Court
of Appeals’ relatively speedy pace of litigation.85
10. Backlog Reduction/Inventory Control.—For an appellate court to
improve its caseflow management, it often must first address the problem of an
existing backlog—i.e., a large number of cases that have been pending for more
than an acceptable period of time. Elimination of the backlog is just as important
for a delay reduction program as is the development of effective means for
dealing with newly filed cases.86 Until the backlog of old cases is cleared away
and substantially all cases are being resolved within the overall time standard
adopted by the court, a court committed to effective caseflow management must
dispose of appreciably more cases than it takes in.
To successfully address a backlog problem, temporary additional resources
may be needed, not only in the court but in other organizations and agencies,
especially if the backlog consists in significant part of cases that have been taking
too long in the record preparation and/or briefing stages. These may include, for
example, the trial courts (in connection with production of trial transcripts and
83. OH. SUP. R. 39(A) (Anderson 2001).
84. See supra Part I.B.2.
85. See Dorothy Toth Beasley et al., Time on Appeal in State Intermediate Appellate Courts,
37 JUDGES’ J. 12, 17 (1998). The Georgia Court of Appeals was one of the most expeditious courts
in Hanson’s Time on Appeal study with a seventy-fifth percentile time of 297 days from notice of
appeal to resolution. See HANSON, supra note 7, at 13-17 (tbl.1).
86. See, e.g., NOVAK & SOMERLOT, supra note 62, at 84-93; MAHONEY ET AL., supra note
53, at 204-05.
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other portions of the records) and the institutional litigants, such as the offices
of the attorney general, public defender, and district attorney, that handle a large
volume of appeals. Planning a backlog reduction program thus requires a
collaborative approach: appellate court leaders must work with the larger court
system in the state (particularly if additional resources are likely to be required
by the court for a short but sustained backlog reduction program) and with the
trial courts, the institutional litigants, and bar leaders.
Where a court is already functioning well and delay is not a problem, control
of the inventory of pending cases should still be a matter of concern. The notion
of a “manageable caseload”—a pending caseload that can be dealt with by the
court within applicable time standards—is operationally important. Management
information—in particular, information on the size, age, and composition of the
pending caseloads in each of the stages of the appellate process—is obviously a
critical element here, but the requisite information should not be difficult to
collect. Trend data is also very important because it provides the court with
warning signs. If filings begin to exceed dispositions and the age of cases in the
pending caseload starts to increase, the court should be prepared to take
corrective action.
C. Reviewing Some Mechanisms That Have Produced Promising Results
While the ten key elements discussed in the previous section should provide
a basis for any intermediate appellate court to proceed toward improving its
ability to process its caseload expeditiously, this project and other efforts have
produced valuable information about specific mechanisms that have worked in
practice in some jurisdictions. (An extensive list of mechanisms is included in
Appendix B.) Information about the mechanisms discussed in this section have
been gleaned from interviews with practitioners in the six courts participating in
the project and from other intermediate appellate courts through a focus group
conducted at an annual educational seminar of the National Conference of
Appellate Court Clerks; a roundtable discussion at the annual educational
seminar of the Council of Chief Judges of Courts of Appeals; and a review of
availability reports and other literature focused on specific courts.
1. Mechanisms for Shortening the Record Preparation Stage.—As noted in
Part III, delays in the preparation and filing of the record are more a problem of
system management than of technology. For the record preparation process to
work quickly and smoothly, it is important for practitioners at both the trial court
and the appellate court to know what is expected (and by when) and to have the
resources needed to do the work. It is important for the appellate court to
actively supervise the process, taking account of relevant time standards and
working to solve problems that produce delays. Four mechanisms show
particular promise for shortening the overall record preparation process.
a. Transcript coordinator.—In New Mexico, a managing court reporter in
Bernalillo County (which includes Albuquerque, the state’s largest city)
coordinates the use of court reporters and other mechanisms for making the
record. Her duties include making certain that the proper transcript has been
ordered and is being prepared expeditiously in each case in which an appeal is
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taken.
b. Transcript oversight by court.—In Washington State, the appeals courts
have taken responsibility for tracking backlog problems with specific reporters.
In Maryland, staff in the Clerk’s Office of the Court of Special Appeals will
contact the reporter(s) who were supposed to produce the manuscript when
transcripts have been ordered but not completed for lengthy periods. In
California’s First Appellate District, one superior court judge in each county has
been designated to serve as the Appeals Supervising Judge and serves as the
primary point of contact for the leaders of the courts of appeal with respect to
transcript production delays and other problems in the preparation stage.87
c. Rapid transcription of audio tapes.—In jurisdictions where the record of
proceedings in the trial court is taken on audiotape instead of by a court reporter,
a policy of having tapes immediately transcribed in any case in which a notice
of appeal is filed may resolve otherwise lingering problems of inaudible or
flawed tapes. Some states, of course, require that written transcripts be filed in
every case, but the immediate transcription policy would be appropriate for
courts that receive many appeals of cases with taped records.
d. Communication with trial court personnel.—The responsibility for filing
the trial court record in the appellate court may fall on either the attorneys or the
trial court clerk. The attorneys may be sanctioned by the appellate court for
dilatory behavior. However, sanctions are probably best reserved for egregious
delay. In the Court of Appeal for California’s First Appellate District, one
Presiding Judge found that conducting regular meetings of trial court clerks
within the appellate court’s jurisdictional area served to alert them to common
problems connected with timely preparation of records and was helpful in
resolving the problems and developing trust and cooperation.88
2. Mechanisms for Minimizing Delays During the Briefing Stage.—Lawyers
handling appellate cases often want—and in some cases genuinely need—more
time to prepare their briefs than is provided for by applicable statutes and
appellate court rules. However, while extensions of time may be warranted,
appellate courts should follow sensible and consistent policies in considering
requests for such extensions and in determining the amount of time allowed. In
situations where the need for an extension is not a case-specific or one-time
event, but rather is the product of systemic problems such as case overload in the
office of an institutional litigant such as a prosecutor or public defender, the
appellate court can play a constructive role in helping to address the underlying
issues. Below are specific mechanisms some IACs are using to address each type
of situation.
a. Policies for responding to requests for continuances or extensions of
time.—This is probably the most common (and often most vexing) problem that
intermediate appellate courts face during the briefing stage. The Ohio Tenth
District Court of Appeals has delegated the authority to rule on motions for
extension of time to its court administrator, who has made it clear that these
87. See Anderson, supra note 70, at 320-23.
88. Id. at 322-23, 357-58.
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motions will only be granted for good cause. Good cause is narrowly defined.
The court has found it more effective to shift these motions from the individual
judges to the court administrator so as to expedite their decisions and establish
a standard policy. Perhaps most critical to the success of this policy is the court’s
willingness to back the administrator when counsel challenge denial of
extensions.
b. Addressing the compliance problems of institutional litigants.—Public
legal offices, such as those of attorney-general, prosecutors, and public
defenders, are frequently understaffed, especially in their appellate sections.
While these offices possess advantages of expertise and familiarity with both the
court and the law in litigating against practitioners who may only occasionally
represent an appellate party, often the appellate sections are significantly understaffed, creating a real disadvantage. In Washington State, the appeals courts
have started to work closely with these offices to prepare schedules for briefing
that recognize the limited resources but also encourage the offices to mobilize
their staffs and prioritize their cases more effectively.
3. Mechanisms for Ensuring Prompt Completion of the Decision and
Opinion Preparation Stage.—The time between the completion of the briefing
stage and the appellate court’s issuance of a decision can be subdivided into two
parts: the period prior to oral argument or submission; and the post-argument (or
post-submission) period. Some courts have developed practical mechanisms for
handling both stages effectively.
a. Prompt calendaring of cases for argument or submission.—IACs follow
different practices with respect to the calendaring of cases. The approach used
by the Maryland Court of Special Appeals has proven effective for that court:
cases are set for argument or submission during a specific month shortly after the
record is filed. The schedule is designed to leave adequate but not excessive time
for preparation of briefs by the lawyers. Other approaches are to place the case
on the calendar at the time the appellant’s brief is filed; or at the time the
appellee’s brief is filed. The effectiveness of any of these approaches depends,
of course, on the parties’ abilities to complete the briefing process within the
schedule set by the court; and the court’s ability to stick to its original schedule.
b. Use of summary calendars.—There is considerable dispute over the value
of oral argument in the appellate process, but a broad consensus that it is not
essential in every case.89 Many courts use summary calendars, often with a
presumption that cases on this calendar will be submitted on the briefs with no
oral argument unless a special request is made and granted. The summary
calendar approach enables the assigned panel to get started on the decision
89. See, e.g., JUDICIAL ADMIN. DIV., AM. BAR ASS’N, supra note 22, § 3.35 and
accompanying commentary. This standard provides that the opportunity for oral argument “may
be subject to qualifications, established by court rule” in some circumstances. Cf. Anderson, supra
note 70, at 345-46 & n.177 (noting that thirty-one states have the grant of oral argument to the
court). Additionally, in some of the states where oral argument is allowed, a case will be placed
on the calendar for oral argument only if requested. In others, the case will be placed on the
calendar but the parties can stipulate to no oral argument. Id.
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process as soon as the briefing process is completed.
c. Early assignment of cases to panels and to a “lead judge.”—Once a truly
firm date is set for submission of briefs or oral argument in a case, the case can
be assigned to a panel. Some courts also assign one of the judges on the panel
to be the preliminary author of the decision in the case at the time it is sent to the
panel. The practice of early assignment of a “lead judge” has been criticized as
giving one judge undue influence over the outcome of the case. However, it has
the benefit of placing primary responsibility for resolution of the case on a single
judge and thus helps establish a system of accountability for effective and
expeditious preparation of a reasoned decision.
d. Augmenting judicial and staff resources.—Most appellate courts that
require lengthy periods of time to render decisions have a backlog—i.e., a large
number of cases that have been argued or submitted, but have been awaiting
decision for an unacceptably long period of time. To eliminate the backlog, it
will be necessary to identify and focus on resolving the “old” cases, while at the
same time handling incoming cases in an expeditious fashion. Often, this will
require temporary additional resources—for example, extra panels using retired
judges or trial judges specially designated to sit temporarily with the IAC.
e. Shorter opinions.—Professors Carrington, Meador, and Rosenberg
presented illustrative examples of short memorandum opinions, appropriate for
different types of situations, in their landmark study Justice on Appeal more than
a quarter-century ago.90
This approach still offers a sound option for IACs intent on providing
counsel and parties with a reasoned, but not unnecessarily lengthy, explanation
of a decision. Antagonism to abbreviated procedures in appellate courts among
both lawyers and legal academics has been stirred by courts that have resorted
to one-word affirmances and decisions without opinion, but the memorandum
decision can be both short and sufficient.91
f. Monthly reports and judges’ meetings.—The Ohio Eighth District Court
of Appeals has made consistent use of a practice of reviewing the status of all
cases awaiting decisions at monthly meetings attended by all judges. According
to judges on the court, the mere existence of the meeting each month stimulates
judges to move more quickly to draft a decision. The court has found that
discussing the cases regularly in this manner also permits other judges to offer
ideas that may cut through the logjam and assist the authoring judge or panel.
Some have suggested that the monthly reports be made public.
g. Proactive leadership by the chief judge.—Perhaps the most valuable
mechanism for ensuring prompt and effective calendaring and decision-making
90. CARRINGTON ET AL., supra note 37, at 243-53 app. B.
91. Some appellate courts must contend with state statutes, usually old, that can be construed
as requiring the issuance of full written opinions in all cases. Data collected by the National Center
for State Courts indicates that twenty-three of the thirty-five courts that participated in the Time on
Appeal research project are required to issue a “reasoned opinion.” See Beasley et al., supra note
85, at 16 tbl.2. In many instances, of course, a memorandum opinion can be “full” and “reasoned”
in the sense that it covers the essential ground.
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processes within the court is the chief judge’s active demonstration of his or her
commitment to an expeditious process. Participants in the roundtable discussion
at a meeting of the Council of Chief Judges noted a variety of ways that they
could exercise effective leadership in this area. Suggestions included taking
responsibility for providing up-to-date and accurate reports to the other judges
on trends and productivity, leading monthly meetings at which caseload status
is reviewed, supervising central staff attorneys’ offices (either directly or through
a liaison judge) to ensure that the staff is staying current with its caseload and not
keeping cases too long, and meeting one-on-one with judges who consistently fall
behind in drafting opinions to discuss the problem and develop a plan for
remedial action.
Many of the mechanisms used by the appellate courts to reduce delays and
improve performance involve some kind of monitoring and troubleshooting.
While new technologies open up possibilities for dramatic improvements, they
rarely reduce the need for on going supervision, problem identification, and
practical problem-solving.
In examining what kinds of mechanisms have proven successful in assisting
intermediate appellate courts to reduce delay and improve performance,
mechanisms that involve both monitoring and troubleshooting should be
emphasized. Often, technological innovations make it possible to conduct some
activities far more swiftly and efficiently than in the past, but rarely do they
reduce the need for constant supervision of the process. The important role
played by the transcript coordinator in New Mexico illustrates how improved
technology—such as vastly improved equipment and techniques used by court
reporters—necessitates that attention be given to the critical stages before and
after the actual preparation of the transcript. Someone must be watching to
ensure that the transcript is properly and timely ordered, segments are not
omitted from either the order or the product, and the final transcript is sent
swiftly to the court and the parties in order to begin next stage of the process.
The monitoring and troubleshooting functions are critically important, and
generally have not been performed well by American appellate courts. They will
likely become even more important in the years ahead, as the introduction of new
technology brings rapid change to institutions that have tended to look to
precedents as the primary guide to decision-making and policy formulation.
V. LOOKING TO THE FUTURE : NEXT STEPS TOWARD IM PROVING APPELLATE
CASEFLOW MANAGEM ENT
From our review of the literature in the field and our study of the six
intermediate appellate courts participating in this project, it appears that not
much has changed in appellate case processing in the past two decades. Despite
the work of the ABA standards committees, the writings of a few knowledgeable
and thoughtful professors and judges, and several empirical studies of case
processing that have helped shed light on the problems and on potential
solutions, most appellate courts appear to have made little change in the way they
handle their caseloads. The types of technological innovations discussed in Part
III are very commonly used in business and industry, but have yet to be adopted
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for widespread use in appellate courts even though they have great potential for
increasing the speed and effectiveness of the appellate process.
As noted in Part IV, the basic strategies and techniques for effective
appellate caseflow management are not novel. Indeed, most of them were first
advanced in the 1970s or earlier, but they have seldom been adopted in a
comprehensive way in state intermediate appellate courts. Most strikingly, the
same broad range of case processing times (with very lengthy times required for
completion of appeals in some courts) that Martin and Prescott found over twenty
years ago92 still seems to be prevalent. Particularly in light of the opportunities
for dramatic improvements presented by the new technologies, the time seems
ripe for renewed attention to appellate caseflow management.
This Part discusses three main types of initiatives that should be helpful in
catalyzing action—and, ultimately, significant improvements—in state
intermediate appellate courts:
• development of a system for regularly collecting and publishing comparable
data on the workloads, resources, structures, operational procedures,
productivity, and case processing times of state IACs;
• design, implementation, and evaluation of demonstration projects aimed at
significantly improving the expeditiousness of appellate case processing; and
• design and presentation of educational programs focused on appellate
caseflow management for judges, court staff, and others at the national, state,
and regional levels.
Lastly, we consider the need to integrate caseflow management into the
appellate process and some final issues concerning acceptance of this principle
by appellate courts.
A. National Data on the Work of IACs
To date, the most comprehensive recent compilation of empirical data on
state intermediate appellate courts has been the work done by Roger Hanson in
his book Time on Appeal.93 That volume has data on case processing time in
thirty-five IACs and also includes very useful information on the number of
filings in each court, judicial resources (judges and law clerks), structural
features, and operational procedures.
Time on Appeal provides a very valuable snapshot of the workloads,
resources, and case processing times in IACs in 1993, but it was a one-time
effort. There are no regularly produced statistical reports on the work of these
courts and no generally available descriptions of their operational procedures.
Development of a system for regularly collecting data on the workloads,
resources, organizational structures, operating procedures, productivity, and case
processing times of state intermediate appellate courts would have a number of
benefits:
• It would increase knowledge about the work of state IACs across the country.
92. See MARTIN & PRESCOTT, supra note 8, at xiv.
93. See HANSON, supra note 7.
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It would enable comparisons to be made about the productivity and
expeditiousness of the courts and should thus provide motivation for
improved performance on the part of the courts that rank low on multiple
measures.
• While comparisons are especially difficult at present—mainly because of
differences in jurisdiction, caseload composition, judicial and non-judicial
resources, methods of categorizing types of cases and organizing calendars,
and measures used to report case processing times—a focused national effort
to develop meaningful statistical data would highlight these differences and
should lead to acceptable ways of making meaningful comparisons.
• Comparisons would provoke discussion of the differences and lead to better
understanding of the differences, the reasons for them, and the implications
(for expeditiousness and other values) of different ways of organizing the
work of IACs.
• Analysis of statistical data, coupled with descriptive information about
organizational structures and operating procedures, should stimulate
identification and adaptation of the best practices and experimentation with
new approaches.
• Accurate information on workloads, resources, structures, and performance
should assist in the development or refinement of appropriate standards of
performance and, ultimately, should lead to improved performance and
greater accountability.
Although it would be desirable to include all IACs in a national statistical
data collection effort, it is more feasible to start with a subset. By beginning this
effort with a manageable number of courts—say, between eight and sixteen—it
should be possible to work through most of the methodological issues
encountered without spreading resources too thinly.
In considering the types of information needed, care should be taken in the
development of accurate descriptions of the organizational structures, allocation
of resources, and operating practices and procedures of the courts. Without such
descriptions, statistical data has little use. The descriptive information enables
observers to understand how a court actually works, gives meaning to the
statistical information, enables comparisons to be made across courts, and
provides baseline information essential for measuring the impact of the
introduction of new policies.
Care must be taken, too, in the development and presentation of statistical
data, particularly with respect to performance measures. Because of the
significant differences among IACs in case volume, resources, caseload
composition, definitions of terms, operating procedures, and other factors, it will
be necessary to devise methods for collecting relevant data, organizing it to
enable relevant comparisons to be made, and presenting it using a variety of
performance indicators.
Grant funding would undoubtedly be helpful (and may be essential) to get a
multi-court IAC data collection and analysis effort started. In the long term,
however, this initiative should be supported by state judicial systems and state
legislatures. The courts themselves, the judicial systems of which they are
integral parts, and the public will be the beneficiaries of greater knowledge about
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the performance of these institutions.
B. Demonstration Projects
Demonstration projects can provide an opportunity to assess the viability of
combining new technology with other programmatic innovations to achieve
ambitious appellate caseflow improvement goals. For example, it should be
possible to design and evaluate demonstration projects that incorporate most or
all of the following components in a system for handling major segments of an
IAC’s caseload:
• establishment of clear goals for appellate case processing, including time
standards for overall case processing time and for case processing time in the
major stages of the appellate process (record preparation, briefing, and
appellate court decision-making);
• use of computer-aided transcription or other transcript-preparation methods
to consistently enable preparation of transcripts within a seven-day period
following completion of the trial;
• provision for the filing of a notice of appeal (with a copy to the IAC) within
fourteen days after the conclusion of the trial; for any outstanding issues
relating to the appeal (e.g., eligibility for appointed counsel, waiver of fees,
agreement on contents of the record) to be resolved within ten days
thereafter; and for a docketing statement with key items of information about
the parties and the issues on appeal to be filed within twenty-one days after
the notice of appeal is filed;
• filing of the clerk’s record and the trial transcript within thirty days after the
notice appeal is filed, using electronic transmission if possible;
• issuance of a briefing schedule and tentative argument/submission date by
the appellate court on or (if the information in the docketing statement
permits) prior to the date the clerk’s record and the trial transcript are filed;
• use of computer-based management information reports to enable appellate
courts to monitor for compliance—on the part of court reporters, trial court
clerks, and appellate attorneys—with the time requirements established for
the demonstration projects;
• establishment by the IAC of internal mechanisms and procedures to help
ensure the prompt completion of all stages of the process, specifically
including designation of a judge and/or senior staff person to actively
monitor compliance with time requirements in the record preparation and
briefing stages; and commitment by the chief judge to actively monitor
compliance by the judges with time standards for the completion of work on
cases assigned for decision; and
• reports made periodically by the court, to the state administrative office of
the courts and to the bar and other interested groups, on the court’s
performance in relation to the goals set for the project.
The evaluation component of such a demonstration project will be critically
important. Evaluation should help the program’s leaders and the funding sources
know the extent to which the project is effective (in particular, whether it is more
effective than alternative approaches, including prior practices) and learn why it
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works or fails to meet expectations. Developing and evaluating demonstration
projects is a natural complement to a comprehensive research strategy and will
also help strengthen national-level and state-level education and training efforts.
C. Education and Training
Despite the clear need for more effective case processing in appellate courts,
few vehicles exist to educate appellate judges, staff (especially appellate court
clerks and central staff attorneys), bar members, and other stakeholders about the
concepts and techniques of sound appellate caseflow management.
One promising approach, used successfully to introduce innovations such as
intermediate sanctions and drug courts at the local level, is to design educational
programs for “teams” of policymakers and practitioners, whose collaboration and
commitment will be essential for a significant case processing improvement
effort to succeed. For a workshop on appellate caseflow management
improvement, logical members of a jurisdictional team would include at least the
chief judge, the clerk of court, and the chief staff attorney. Depending on the
circumstances in the jurisdiction, other potential members of the team could
include the appellate court’s chief information officer or other senior member of
the administrative staff of the court, chiefs of the appellate litigation sections of
major institutional litigants (e.g., attorney general’s office, prosecutor’s office,
and public defender’s office), a bar association leader knowledgeable about
appellate practice, the chief judge (and/or clerk, court administrator, or chief
court reporter) of a major urban trial court that is the source of a significant
percentage of the appellate court’s caseload, and a legislative leader.
Workshops for jurisdictional teams are probably best conducted at the
national or regional level. Such a workshop can be a vehicle for presenting
information and ideas about appellate caseflow management and, most
importantly, for members of the participating teams to set goals and begin
development of a plan for significant improvements in case processing. At a
minimum, the workshop should provide opportunity for the key stakeholders to
take a hard look at the situation in their own jurisdiction, exchange information
and ideas about perceived problems, and gain a better understanding of the
concerns of others whose involvement will be essential for progress to be made.
In addition to workshops for teams, it will be helpful to have programs for
individual judges, clerks, and staff attorneys, presented at the state or individual
court level as well as at the national level.
D. Integrating Caseflow Management into the Appellate Process
The concept of caseflow management is simply not widely understood or
applied in appellate courts. Indeed, one observer, commenting on an earlier draft
of this manuscript, suggested that the authors should not assume that the culture
of courts in general—and appellate courts in particular—accepts timeliness as a
overarching value.
Timeliness need not be regarded as an “overarching” value, but it is
unquestionably an important value in American jurisprudence and in public
attitudes toward courts. Timely resolution of disputes is widely recognized as an
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essential characteristic of a well-functioning justice system. Recognizing that
timeliness affects the quality of justice, virtually every state has adopted statutes
and court rules designed to produce expeditious case resolutions. In every survey
of public attitudes toward courts and the justice system, delay (along with the
expense of litigation) emerges as a major complaint of citizens.
If timeliness is an important value, and if there is good evidence that
expeditious appellate case process is achievable,94 then what must be done to
address the chronic problems of delay that plague most intermediate appellate
courts? Like Rosenberg more than three decades ago, we reject the “oneinjection miracle cure” approach and recognize that progress is most likely to
come from marshaling relief measures in groups.95
The preceding section has outlined three complementary
approaches—collection and dissemination of comparative data on court
performance, implementation and evaluation of demonstration projects, and a
sustained focus on education for key stakeholders—that should help catalyze
improvements. Additionally, a broad range of strategies and techniques—many
of them described in Parts III and IV and in the Appendices to this report—can
be employed to address issues of backlog and delay. For real progress to be
made, however, justice system leaders—most importantly (but not exclusively),
the chief judges of the intermediate appellate courts—must acknowledge
timeliness as an important value and recognize the necessity of integrating
caseflow management principles and techniques into the appellate process.
Integrating caseflow management into the appellate process should be
possible without infringing upon other important values of a well-functioning
intermediate appellate court. These other values include:
• impartiality in decision-making;
• the capacity for judges to read and think individually about cases that come
before them;
• collegiality in decisionmaking and opinions;
• reasoned decisions;
• uniformity and consistency in decisions; and
• working conditions that attract lawyers of high quality to the appellate
courts, keep them on the bench, and foster their concern for individual
litigants and for the integrity of the appellate process.
In an environment that requires group decision-making processes and
includes strong-minded individuals, disagreements over the relevance of
conflicting precedents, the appropriate application of law to the facts of
particular cases, and a host of other issues are inevitable. In some cases,
substantial amounts of time may be required to reach decisions or resolve
differences over the wording of an opinion. A sound approach to caseflow
94. A few intermediate appellate courts—notably the Minnesota Court of Appeal and the
three divisions of the Tennessee Court of Appeals—clearly handle their caseloads very
expeditiously. See HANSON, supra note 7, at 12-18; see also Beasley et al., supra note 85, at 14
tbl.1.
95. Cf. Rosenberg, supra note 53, at 55.
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INDIANA LAW REVIEW
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management will acknowledge the inevitability of some disagreements within the
court and the need for time to resolve some differences prior to the issuance of
an opinion. However, it will also recognize that a high proportion of cases
involve no sharp disagreements, which should permit the issuance of an opinion
in a relatively short period of time. Similarly, a sound approach to caseflow
management will recognize that some cases should be allowed extra time for the
filing of the record or the preparation of briefs, but will also recognize that in a
high proportion of cases it is feasible to complete these stages quite
expeditiously. Perhaps most importantly, a sound approach to caseflow
management will recognize that, in addition to the parties’ interests, there is a
strong public interest in minimizing delays and that the appellate court must
exercise responsibility for the expeditious operation of the process, beginning at
the time a notice of appeal is filed.
Timeliness in the resolution of appeals and the integration of caseflow
management into the appellate process are fundamentally leadership issues.
They are issues with respect to which sustained attention from persons in
positions of leadership over a period of years will be important. Given the
rapidity of leadership changes in IACs (with the chief judge position often
rotating on a yearly basis), it seems desirable to develop a leadership group or
cadre committed to expeditious appellate case processing. Within each court, the
cadre would logically include other judges (especially those likely to become
future chief judges), the clerk and chief deputy clerks, and the chief staff
attorney. Externally, the leadership group could include the heads of the
appellate sections of major institutional litigants, bar leaders who specialize in
appellate litigation, legislative leaders, and—perhaps most importantly—the
chief justice of the state’s court of last resort and the state court administrator.
In some states, statutes, court rules, established case law, and longestablished practices may have to be changed in order to achieve effective
caseflow management. However, archaic statutes, rules, precedents, and
practices can be changed when they clearly lead to undesirable results. If court
and bar leaders are truly committed to timeliness as an important value in the
judicial process, they will find ways to achieve the changes and integrate
caseflow management into appellate court operations.
While opportunities for improvement in the operation of intermediate
appellate courts abound, there is also some cause for optimism. Some IACs have
organized and mobilized themselves to integrate caseflow management concepts
and techniques into their cultures. They have communicated their goals and
expectations to the bar and to the trial courts, and they have modeled expeditious
case processing by rendering their own decisions in a timely manner. Perhaps
most importantly, they have taken responsibility for the entire appellate process,
from the filing of a notice of appeal to the issuance of a decision in the case.
Although much more remains to be learned and done, there is a good base of
knowledge and experience on which to build.
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Table 1. Descriptive Information for the Six Courts
Geographic
Maryland
New Mexico
Ohio 8th District
Statewide
Statewide
Scope of
Jurisdiction
Number of
Ohio 10th District
Washington I
Washington II
Regional (single
Mixed (statewide for some
Regional (3 judicial districts,
Regional
county judicial
administrative law matters;
6 counties)
(13 counties)
district)
single county for others)
13
10
12
8
10
7
3
3
3
3
3
3
Non-partisan election
Non-partisan election
Non-partisan election
Judges
Size of
Panels
Governor
Partisan
Non-partisan
Method of
appoints;
election; non-
election
Selection
retention election
partisan
retention
Selection
Circuit &
Area
Statewide
Statewide
Statewide
Statewide
District
District
Term
10
8
6
6
6
6
Indefinite
2
Varies (usually 1
Varies (usually 1 year)
2
2
(Years)
Term of
Chief Judge
year)
(Years)
Use of Senior
No, but retired
Judges
judges are used
No
No
No
No
No
None
None
None
3 appellate magistrates
4 commissioners
2 commissioners
2
1
2
2
2
2
9
15
6
7
7
3
Number of
Non-Judge
Judicial
Officers
Number of
Law Clerks
per Judge
Number of
Staff
Attorneys
522
INDIANA LAW REVIEW
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Table 2. Appeals Filed in 1999 in Relation to Judges and Other Judicial Resources
Maryland
Filings
New Mexico
Ohio 8th District
Ohio 10th District
Washington
Washington
Division I
Division II
1962
948
1833
1500
1879
1229
Number of Judges
13
10
12
8
10
7
Filings Per Judge
151
95
153
188
188
176
Number of Law
26
10
24
16
20
14
75
95
76
94
94
88
8
15
6
7
7
2
245
63
306
214
268
615
50
47
51
63
63
59
1962/47=
948/35=
1833/42=
1500/34*=
1879/41**=
1229/25***=
42
27
44
44
46
49
Clerks for Individual
Judges
Filings Per Law
Clerk
Number of Staff
Attorneys
Filings Per Staff
Attorney
Filings Per
Combined Judge and
Law Clerk Resource
Filings Per
Composite Judicial
Resources (i.e., per
combined total of
judges, other judicial
officers, law clerks,
and staff attorneys
* Includes three appellate magistrates.
** Includes four commissioners.
***Includes two commissioners.
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Table 3-A. Filings and Dispositions for the Six Courts, 1998
Maryland
New Mexico
Ohio 8th
Ohio 10th
Washington
Washington
District
District
Division I
Division II
Civil Filings
1186
533
1435
1307
740
479
Civil Dispositions
1175
413
1237
1279
717
480
Criminal Filings
765
424
709
345
821
597
Criminal Dispositions
804
371
663
364
861
499
Total Filings
1951
957
2144
1652
1561
1076
Total Dispositions
1979
784
1900
1643
1578
979
Ohio 8th
Ohio 10th
Washington
Washington
District
District
Division I
Division II
Table 3-B. Filings and Dispositions for the Six Courts, 1999
Maryland
New Mexico
Civil Filings
1219
573
1265
1145
684
414
Civil Dispositions
1167
390
1217
1294
769
470
Criminal Filings
743
375
568
355
742
516
Criminal Dispositions
661
370
644
328
839
596
Total Filings
1962
948
1833
1500
1426
930
Total Dispositions
1828
760
1861
1622
1608
1066
524
INDIANA LAW REVIEW
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Table 4-A. Time from Filing to Disposition in the Six Courts, 1999
Maryland
Average time,
322 days
New Mexico
Ohio 8th
Ohio 10th
District
District
Reg. Cal.:
Reg. Cal.:
from filing to
428 days
479 days
resolution—all
Summ. Cal.:
Summ. Cal.:
cases
160 days
237 days
Washington Division I
Washington Division II
536 days
568 days
Days to resolve
Civil:
Civil:
Civil:
75th percentile
336 days
592 days
605 days
case
Criminal: 344
Criminal :
Criminal:
days
797 days
805 days
Days to resolve
Civil:
Civil:
Civil:
95th percentile
425 days
615 days
652 days
case
Criminal:
Criminal:
Criminal:
443 days
1054 days
955 days
Percentage of
1st Q: 44.7%
1st Q: 35.4%
cases pending
2nd Q: 50.4%
2nd Q: 33.7%
longer than 210
3rd Q: 50.4%
3rd Q: 32.3%
days from
4th Q: 47.9%
4th Q: 30.0%
filing*
*A special 180-day guideline applies to original actions. These data include cases beyond that guideline.
Note: Where no information is shown, it was not possible to obtain data from the courts’ reports.
2002]
MANAGING CASEFLOW
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Table 4-B. Time from Filing to Disposition (in Days) in the Six Courts, 1998
Maryland
New Mexico
Ohio 8th District
Ohio 10th District
Washington Division I
Washington Division II
75% decided:
Average time (in
Average time (in
Percentage of cases pending
75% decided:
75% decided:
Civil-392
days):
days):
past 210-day guideline:*
Civil-644
Civil-687
Criminal-355
Regular-470
Regular-396
1stQ-32.5% 2ndQ-36.7%
Criminal-644
Criminal-690
95% decided:
Summary-219
3rdQ-32.3%
95% decided:
95% decided:
Summary-153
Non-merits cases:
4thQ-33.6%
Civil-865
Civil-988
Civil-553
Regular-92
Criminal-1152
Criminal-1082
Criminal-507
Summary-54
Average time:
Average time:
Civil-554
Civil-587
*A special 180-day guideline applies to original actions. These data include cases beyond that guideline.
Table 4-C. Time from Filing to Disposition (in Days) in the Six Courts, 1999
Maryland
New Mexico
Ohio 8th District
Ohio 10th District
Washington Division I
Washington Division II
75% decided:
Average time (in
Average time (in
Percentage of cases pending
75% decided:
75% decided:
Civil-336
days):
days):
past 210-day guideline*:
Civil-592
Civil-605
Criminal-344
Regular-428
Regular-479
1stQ-35.4% 2ndQ-33.7%
Criminal-797
Criminal-805
95% decided:
Summary-237
3rdQ-32.3%
95% decided:
95% decided:
Summary-160
Non-merits cases:
4thQ-30%
Civil-615
Civil-652
Civil-425
Regular-114
Criminal-1054
Criminal-955
Criminal-443
Summary-52
Average time:
Average time:
*A special 180-day guideline applies to original actions. These data include cases beyond that guideline.
Civil-521
Civil-521
Criminal-546
Criminal-601
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Table 5. Average Time (in Days) in Stages for Appeals, 1999
Notice to Record
Record to Brief
Brief Filed to Argument
Argument or
Filed
Filed
or
Submission to Decision
Submission
Maryland Civil
189
96
53
65
Maryland Criminal
71
114
40
85
54
14
New Mexico Summary
94†
New Mexico Regular
142
113
82
124
Ohio Eighth District
49
145
216
35
Washington Division I
128
172
246‡
Washington Division II
111
328
262‡
†This figure is the total in days from notice of appeal until calendaring and the next figure is the total in days from calendaring until submission.
Briefs are not filed in summary cases in New Mexico.
‡These figures are the totals in days from the completion of briefing until decision.
2002]
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527
Appendix A
Note on the Impact of Technology on
Appellate Caseflow Management
ROGER A. HANSON *
Appellate court performance can be enhanced through the use of existing
and future technological possibilities. Introduction of automated processing is
a way for courts to improve their record-keeping and related functions and to
increase their efficiency. Both record-keeping and efficiency are central to case
management, which in turn underlies the resolution of cases in a timely manner.
For state intermediate appellate courts, in general, and the courts under study, in
particular, improvements in both of these areas are warranted.
At the general level, intermediate appellate courts have experienced
substantial technological innovations. During the 1980s, many, if not most,
courts saw the implementation of first (or subsequent) generation online
docketing systems. These systems either replaced strictly manual systems with
ledgers and paper and pen entries, word processing systems limited to generating
notices and orders, or mainframe systems that were part of larger county or statewide proprietary arrangements with fixed report production generation
capabilities. These were often designed to meet the record-keeping needs of
executive agencies who controlled the configuration of software design.
For the courts under study, the ability to generate management
information related to timeliness was constrained. All of the courts had difficulty
in providing information on the timeliness of civil and criminal appeals at basic
steps in the appellate process for cases on either a regular calendar or a special
expedited calendar. The information generated and used in this report was
delivered at some cost and energy to the courts involved. Data were not a
product of point-and-click movements. Thus, the project appreciates the
generous efforts that the courts made to respond to our requests. Nevertheless,
the information obtained was not as complete as it should have been, and the
inability of most courts to generate adequate information greatly restrains the
opportunity to compare time frames among the courts.
In this Appendix, we examine how improvements in technology might
substantially increase what state intermediate appellate courts know about their
degree of expedition as well as enable them to see how they stand in relation to
others. Three areas of technology are the focus of attention. These are
automated management information systems, issue tracking, and electronic filing.
For each area, suggestions are made on how courts can benefit from these
technological applications, what questions they need to ask in considering their
usage, and what guidelines they might follow in sorting out possible
* B.A., Concordia College; Ph.D., University of Minnesota. This Appendix was prepared
for the project by Dr. Hanson under a subcontract between the Justice Management Institute (JMI)
and the National Center for State Courts, and subsequently under an agreement between JMI and
Dr. Hanson.
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INDIANA LAW REVIEW
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configurations of technology. The discussion is aimed at providing courts with
a framework to use in assessing the desirability of possible technological
applications.
1. Management Information Systems.—The basic technological
application that appellate courts need to consider involves the development of a
method for obtaining information on how timely they are in discharging their
decision-making obligations, ranging from ruling on procedural motions to
rendering opinions after oral argument. The following five recommendations or
guidelines are intended to provide appellate court judges and administrators with
some basic premises that will affect their efforts to design adequate systems and
to work with management information specialists to make either local area
networks (LAN) or wide-area networks (WAN) flexible and practical
management information systems.
Guideline Number One: A management information system is different
from an automated docketing system.
Many appellate courts have automated docketing systems, but this
information is stored primarily for the purpose of tracking events in the life of a
case (e.g., filing dates for critical events, the outcome of rulings on motions and
the final resolution of an appeal, and the pending status of cases) for recordkeeping purposes. The functional difference between an automated docketing
system and a management information system is that record-keeping systems do
not support a platform for analysis of case processing. In some mainframe
environments, the preparation of management reports is contingent on a
management information specialist writing code to extract appropriate cases.
The time and resource requirements needed to write appropriate code to perform
statistical calculations cannot be considered trivial, and, logically, it becomes a
greater burden as the bench becomes more sophisticated and asks for more
advanced, exploratory, and explanatory management reports.
Consequently, the appellate court leadership needs to recognize that the
daily operation of a management information system is a function that should be
kept separately from the tasks of system administration and maintenance (e.g.,
gateways, routers, and protocols). In all likelihood, the platform required for a
management information system will entail a viable, stand-alone end-user
environment (i.e., LAN or WAN based personal computer (PC) environment) to
support the periodic analysis of all available caseload information. Once the
court recognizes the distinction between the two functions (and that as the
functions are discrete, so too should be the platforms that support the tasks), it
will be easier to envision how to proceed to produce the type of information and
reports the court deems worthwhile.
Guideline Number Two: There are a wide range of hardware and
software configurations that can support a management information system
platform.
In its simplest form, the system might entail one individual working with
one PC using any number of available off-the-shelf statistical software packages,
as well as any available proprietary software. Often the matrix of data (or, where
courts are using relational databases, the tables of data and relations) that is, in
fact, the court’s “information” can be imported (if not already in a PC
environment) into a PC that uses any number of software packages. This type of
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MANAGING CASEFLOW
529
management information system has limitations such as restricted read-and-write
accessibility and difficulty supporting any number of concurrent users.
A more accessible system configuration would support multiple users
whether or not a judge, administrator, law clerk, secretary, senior staff attorney,
clerk, and deputy clerk of court each had his or her own personal computer as
part of a LAN (or WAN). The implication of the wide range of available
configurations is that the type of output the judges and administrators wish to
generate should drive the process of system design and configuration, not vice
versa.
Guide Number Three: Some of the simpler types of management
information systems can take advantage of hardware already in place and
minimize the resources expended to implement a workable information system.
Some very sophisticated PC software that can handle significant size
databases (e.g., twenty, thirty, or forty megabytes) while executing advanced
statistical techniques and procedures can be obtained at reasonable costs. Hence,
the financial, personnel, and time resources a court must expend need not be
viewed as necessarily prohibitive.
Guideline Number Four: The utility of any information system is
contingent upon the individuals who use the system and the purposes for which
it was created.
Judges, managers, and court staff need to communicate their respective
questions and concerns to each other. Management information needs to be
demystified. It is not the by-product of some elaborate configuration of
technology that can solve problems confronting the court. A management
information system is defined by its end users, their ability to manipulate the
application and utilities available to them, and the benefit derived by those users
from the information they extract to understand the operations of the court.
Some management information specialists might focus on hardware, but it is
necessary to devote an equal amount of resources to cultivating end user
expertise.
Guideline Number Five: The utility of management information systems
correlates directly to the ability of each end user to apply the information
received.
Each end user will define a “useful” information system differently; all
information systems will evolve and progress over time and different parts of the
courts will variously converge and diverge in their interests and needs. Indeed,
the information required by the judges will not always be the same as the
management information requirements of the court administrative office in
monitoring case processing or as the clerk’s office in producing case processing
notices, letters, and reports. For this reason, it is preferable for systems to
possess a great deal of flexibility and have the capacity to change and adapt.
Judges and court managers should be particularly leery of any docketing or
information software (whether proprietary or from a commercial vendor) that
promises to serve as a once and future panacea. Rather, it is important to
understand that all management information systems will need to undergo
periodic restructuring to remain current and to support the evolving legal and
court environment, as well as the changing needs of the end user.
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INDIANA LAW REVIEW
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These guidelines should permit administrators and judges to have a more
focused dialogue concerning management information systems. Judges will learn
that the court can be responsive to their needs, and they should be able to suggest
a range of alternative computer and software configurations and a series of viable
options as opposed to forced choices.
2. Issue Tracking.—A second type of technological application
particularly relevant to appellate courts is the use of automation to support issue
tracking. This use of technology is not new, but it merits attention because,
although it has proven highly successful in some instances, it has not been
adopted on a widespread basis. Essentially, if a court has an on-line docketing
system, acquisition of additional software will allow data relating to procedural
events and dates to be combined with new data on issues and, thereby, permit
identification of similar cases. The necessary software is available for purchase
or can be developed in a proprietary form by a court.1 Data on issues require the
development of a dictionary of issues, statutory provisions, and case law.
Pending cases then are examined for the purpose of issue and statutory
classification to see if there is a group of similar pending cases that might be put
on the same calendar for a single panel’s consideration.
The clustering of cases permits the resolution of an issue by a lead case,
whose opinion is applicable to the remaining cases, so that the remaining cases
are decided in a more summary fashion. Where the issues in cases are identical,
greater efficiency and improved quality are realized because judges can read the
same statutes and case law for many cases and spend more time on lead opinions.
Where the issues resemble one another, background work is pertinent to all the
cases and the panel is likely to gain greater familiarity within the area of law
represented by the issues.
A court that developed its own issue tracking system in conjunction with
its development of an on-line docketing system is Division One of the Arizona
Court of Appeals in Phoenix. Before the additional software was put into place,
the court used a software package to search for cases with common issues. As
a result, it can assess the advantages and disadvantages of relying on software
that is readily available compared to developing proprietary software.
Issue tracking operates in Division One with the chief civil and criminal
staff attorneys categorizing individual cases based on issues listed in the
docketing statement and entering the issue-related information into a database
according to codes the staff attorneys have established. Once a case has been
perfected, the information obtained from the on-line docketing system is added
and the issues stated in the briefs are reviewed to check issue consistency. The
staff attorneys use information from the database in assigning cases, on a
weighted basis according to issue difficulty, to other staff attorneys who prepare
prehearing memoranda for the panels of judges.
1. Available software packages are likely to cost a few hundred dollars and can be installed
on a PC. Data from the docketing system can be imported into the PC and merged with the data
to be entered on the issues.
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MANAGING CASEFLOW
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Concerning issue tracking, the chief staff attorney informs the court clerk
of issue similarities prior to the calendaring of cases. As a result, the clerk might
assign six to nine additional cases dealing with the same issue (e.g., premises
liability relating to swimming pools, restitution, or revocation of driver’s
licenses) with a resulting increase in the total number of cases decided each
month, without requiring additional work by the judges. The productivity gains
from additional cases being assigned to panels in Division One proved sufficient
to reduce a substantial criminal case backlog, despite a considerable increasing
trend in the number of appeals filed with the court.
For other courts, the desirability of an issue tracking system hinges on
the answers to several questions. Are there a substantial number of single-issue
cases? Are they likely to involve the same or similar issue in many instances?
Does the court believe that it decides cases on the basis of issues even through
the factual circumstances might be different? If all the answers are affirmative,
then an issue-tracking program warrants further investigation.
3. Electronic Filing.—A third area of technological innovation that
promises to improve the efficiency of the appellate process is the use of
electronic communication among parties, their attorneys, and a court. The
possible forms or documents to be sent to a court include pleadings, motions,
transcripts, and briefs. The use of Internet technology and appropriate software
make it possible for documents to be prepared on an attorney’s PC, and the data
from those documents to be transmitted, received, and stored by a court in
exactly the same format. Because the documents are being communicated
electronically instead of in the paper format, the innovation is called “e-filing.”
Three kinds of cost and time savings in communications to attorneys are
apparent and need only be summarized. First, documents can be sent without the
expense of either hand delivery or messenger services. Furthermore, there is no
printing cost, photocopying cost, and no use of envelopes, postage, or
communication management.
Electronic communication is virtually
communication cost-free to attorneys.
Second, electronic communication is compatible with how attorneys
prepare documents. Most attorneys no longer dictate or compose in long hand.
Because attorneys are accustomed to PCs and laptops, they do not need to master
new technology to avail themselves of e-filing. Hence, their learning how to
communicate electronically is virtually cost-free. Third, the instantaneous
transmission now available avoids the inevitable and frequent inconveniences
associated with other methods of communication. Even the speediest messenger
might have to wait in line or incur transportation problems. Thus, the risks of
late delivery are minimized and the anxiety costs of possible missed deadlines are
almost zero with electronic filing.
Yet, despite these obvious gains in efficiency, the application of electronic
filing has been limited, particularly to federal trial and bankruptcy courts, with
some application in selected state trial courts and with minimal experience in state
appellate courts. The Arizona Court of Appeals, Division Two, in Tucson, and the
North Carolina Supreme Court are two exceptions. Based on this experience, the
focus here is on questions that state appellate courts are likely to have when they
consider the advantages and disadvantages of integrating electronic filing into
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INDIANA LAW REVIEW
[Vol. 35:467
their existing case management systems. A court without a case management
information system is not a promising candidate for electronic filing because the
advantages to a court of accessing documents stored electronically will be lost
with a manual information system or a strictly on-line docketing system.2
It is also important to focus more narrowly on the questions a court needs
to ask concerning the gains that it might receive from an electronic filing system,
what it must do to secure those gains, and what costs it is likely to incur that
might offset gains in productivity or efficiency. Looking at e-filing from an
intermediate appellate court’s perspective, there are six key questions
surrounding the benefits of e-filing.
As more knowledge is gained through technological improvements and
more experience is gained from more pilot programs, the questions will change.
The questions are not necessarily listed below in order of importance, but they
begin with those likely to be raised in a court possessing minimal working
knowledge of electronic filing and proceed to those that might be raised in courts
that already have some background information or contact with electronic filing.
The first question concerns the possible benefits to a state appellate court
from electronic filing. The list of positive incentives is somewhat theoretical
because of the limited applications to date. However, the leading benefits are
thought to include the following:
•
•
•
•
•
Greater preservation of documents by avoidance of lost, damaged, or
stolen paper case files.
Reduction in the storage costs of paper documents.
Reduction in the time and personnel required to store and retrieve paper
documents.
A search capacity, not available by reading paper documents, that
enables topics of specific interest to be located expeditiously in lengthy
documents.
A greater opportunity for multiple people, such as judges, managers, and
court staff, to access and read documents simultaneously than when
paper documents have to be shared.
2. See JAMES MCMILLAN, A GUIDE TO ELECTRONIC FILING (1999).
A modern case management system also is required. Case management systems
currently are responsible for tracking all cases, documents, filing fees, judge and jury
assignments. . . . In an electronic filing environment, the case management and
document management systems must be integrated. Data can be shared between these
systems without re-keying. . . .
The benefits of this integration include significantly faster and more accurate
access to case information. For example, while it will be possible to perform text
searches in the document management system to find papers, using this approach
exclusively could prove inefficient because the same data formatted for document
retrieval may exist in many other pleadings. . . .
Id.
2002]
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MANAGING CASEFLOW
533
Tighter integration of legal documents, key procedural events, and dates
than when papers are in case files and separated from either a manual or
an on-line docketing system.
To realize these promising gains in efficiency, the second question
concerns the form in which the court uses the documents it has received
electronically. Does a court need to use documents only in an electronic format
to gain the benefits of e-filing? What if copies are made? Who pays for them?
Does the photocopying of multiple copies eliminate savings in storage costs?
Basically, this question focuses on whether a court under an electronic filing
system might end up paying the costs of reproduction that attorneys previously
bore. To avoid this situation, does electronic filing appear to require that either
judges, court employees, or both restrict their review of documents to the
electronic form?
It is unlikely that e-filing will make a court a “paperless” institution.
However, the extent to which the benefits of e-filing are secured hinges on the
extent to which judges and court staff are willing to read and use documents in
electronic format (i.e., on a computer screen).
This question is likely to remain salient until the emergence of a new
generation of appellate judges who are more accustomed to reviewing and
analyzing documents electronically. Hence, a considerable amount of education
on the value and ease of viewing documents electronically, aimed at judges,
would seem necessary to e-filing’s success.
A third question: how does e-filing work? Is it like e-mail? E-filing is
not e-mail with an attachment, but the process can be viewed as follows. An
attorney decides to file a document and prepares it on a PC. Then the attorney
connects to a court’s (or private company’s) Internet page and clicks on a link to
enter an e-filing system. The attorney provides a username and password
assigned by the court, which accepts them as a signed signature. The attorney
responds in a menu format to a series of queries posed by a court’s (or vendor’s)
software: What is the type of document, case file and name, the party filing the
document, and the document itself? Once the filing is completed, the court’s
computer responds with an electronic document receipt and serves other
attorneys based on a pre-established list of attorneys capable of sending and
receiving messages electronically. Additionally, appropriate docket entries are
made and the document becomes part of a case management system strictly for
access by the judges, managers, and court staff.
A fourth question concerns hardware and software requirements for the
transmission of documents from the outside to the court. The federal court
experience is considerable. Basically, attorneys practicing in federal courts
where e-filing already exists must have Internet access and Web browser
software so that they can access a court’s software. Currently, an attorney will
also have to have a Portable Document Format (PDF) writer and reader to upload
and retrieve electronic filings. For a court, two servers are needed. One server
handles access from attorneys and the other handles a court’s access to
documents received and a court case management system.
In the federal court context, an attorney would prepare a document on a
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INDIANA LAW REVIEW
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PC with a word processor of choice. The document would be saved and then
printed using Adobe’s PDF Writer. Using a Web browser, the attorney would
then connect to a court’s home page and file the motion. The attached PDF
document (PDF is a proprietary standard for Adobe, Inc. that enables a document
to be displayed exactly as it was prepared) would then be forwarded to a court’s
Website and stored in its database.
The federal court hardware and software configuration might be
considerably different from possibilities in state appellate courts because the
federal initiative is being guided by the Administrative Office of the U.S. Courts,
which is developing a joint integrated next-generation management information
system with electronic filing. This comprehensive system connects attorneys
through the Internet to an e-filing system. Those documents are connected
through an in-house-designed web server to an in-house-designed case
management and document management system.
State courts might not have the resources required to develop and
maintain all of the necessary hardware and software capabilities. However, a
variety of private companies have the necessary hardware and software, as well
as expertise, to link attorney-based communications to a court. What a state
appellate court must decide is what components the court can “outsource” to
private companies. If a court decided that a private company should provide the
transmission both between filers and the court, attorneys would log on to a
private company’s website and follow procedures (menu choices) in stating what
was being filed. Documents would be filed with the court electronically because
the company had set up a separate connection between its system and the court’s
web or e-mail server. However, whether the court provides its own e-mail filing
system or depends on an e-mail provider (vendor), the court still needs to connect
the electronic documents to its case management and document management
systems. Otherwise, the court will realize few efficiency gains. It will also be
important that the filings are retained in the court’s, rather than the vendor’s,
archive.
This description suggests that the tools of electronic communication are
neither available to everyone nor free. Investments by attorneys in paying fees
to a vendor and by a court in connecting its case management system to
electronic document systems are required, with the expectation that not every
party or attorney will file electronically. Thus, courts need to be prepared to
continue to have paper submissions, and for the foreseeable future, endure the
costs of running parallel filing systems.
A fifth question addresses the kinds of documents an appellate court
especially benefits from receiving electronically. Having electronicallytransmitted transcripts can potentially be advantageous because of the reduction
in storage costs and because of the benefits of a search capacity in reviewing
lengthy documents. Yet, will judges be willing to review lengthy electronic
transcripts in complex civil and criminal cases? Perhaps their central staff
attorneys and law clerks might, but will judicial acceptance of their new practice
require a lengthy transition period? Moreover, this topic of application suggests
that the benefits of conversion from paper to an electronic format are not simply
quick communication, but they also fall in the management and analysis of
2002]
MANAGING CASEFLOW
535
lengthy documents with benefits redounding to a court, attorneys, and court
reporters. The ability to store and communicate transcripts electronically
seemingly would be in the self-interest of reporters both in terms of management
ease and cost effectiveness. Moreover, this aspect of electronic documents
would appear to be viable without a court’s involvement.
Sixth, what have been the experiences of state appellate courts to date?
An effort in the Arizona Court of Appeals, Division Two, at Tucson, is a multiphased project that currently services the legal defenders office and soon will
include the office of the attorney general in the submission of motions and briefs,
with plans to expand similar electronic filing service to other litigants. An
ambitious phase to be implemented this year will allow the court’s major trial
court (Pima County, Tucson) to submit the record on appeal electronically.
Concerning the first phase that enables the two institutional offices to
transmit documents, the court has set up the electronic filing system with internal
funding. Attorneys in the two institutional offices connect with the court’s
website on the Internet and register, set up cases, and send documents that are
stored on the court’s server. The attorneys are required to have a PC, access to
the Internet, and a Java-enabled browser. The court has an electronic document
management system in place that integrates electronic documents received with
its case management system. This system has been operational since 1998.
The planned phase involving the appellate record is called the Blueback
Project because the Pima County Superior Court Clerk uses blue paper backing
to send the paper record to the court of appeals. The anticipated and forthcoming
change will allow the clerk to electronically transmit imaged paper records and
indices of the records to the appellate court.
Prior to transmission, the clerk will convert the imaged documents from
a proprietary IBM format to a standard TIF format, with some necessary software
work funded by the court. Once converted, the record and index of the record
will be incorporated into the court’s electronic document management system,
which will update the court’s case management information system and make the
record in the case available to all court personnel in Division Two.
Members of the court and outside attorneys anticipate particular
consequences from the switch to electronically-stored documents. Many predict
that practice with the new system will be the key to reducing cost and storage
problems inherent in traditional paper systems. Law clerks, central staff
attorneys, and justices believe that only through experience will they have a
realistic sense of the magnitude of these savings. For example, they think that
only by repeated attempts will they know how to gain the maximum value of a
search capacity in analyzing documents. Interestingly, outside attorneys have a
parallel outlook because they believe that paper copies will still be needed in
some instances. Given that the thrust of the new system is aimed at criminal
appeals, the views of criminal defense attorneys are pertinent. Those attorneys
see the continuing importance of paper to show clients in particular instances
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INDIANA LAW REVIEW
[Vol. 35:467
(e.g., in Anders3 cases or habeas corpus petitions) copies with the court’s handstamped acceptance to avert claims of ineffective assistance of counsel. Whether
these and other possible concerns are on target will be tested in the near future.
Hence, it will benefit not only Division Two but other courts as well if an
evaluation is in place to capture the effects of the innovation.
The North Carolina Supreme Court began a parallel initiative in 1999
with the support of the State Justice Institute and a partnership with IBM.
Institutional law offices, private attorneys, and pro se litigants can transmit a
broad range of documents to the court. Potential users need a PC, access to the
Internet, a browser (the court recommends Microsoft Internet Explorer), and the
Adobe Acrobat software, which converts a word processing document or scanned
image into a single PDF file that can be accepted by the e-filing system.
Electronically-generated documents such as motions, petitions for review, and
briefs are the customary documents transmitted, although paper documents such
as transcripts and exhibits can be transmitted if scanned into electronic form by
a user.
Users contact a Web page, established and currently maintained by IBM.
The users register on the Web page and establish usernames and passwords.
Actual use of the system is accomplished through a link on the Web page to a set
of step-by-step instructions. Documents are transmitted from a user’s PC to the
Web page and from there to a server maintained by the court. The data on the
form that a user has entered are then imported from the server into the court’s
case management system (via Visual FoxPro database management software).
As soon as the data have been transmitted, a screen comes up on the Web page
and informs a user that a document has been received. This screen can be printed
out and serve as a receipt of timely filing. Additionally, an electronic mail
message is sent to the user verifying receipt of a document. Finally, after
receiving a document, staff in the clerk’s office opens it and reviews it for
completeness and correctness. Any problems are communicated by the clerk’s
office to a user by telephone.
Because the project is in the early stages of development, its
consequences are not yet fully known. The institutional offices of criminal
appellate defense attorneys and the Attorney General’s Office are the primary
users to date. Resources limit the potential for pro se litigants to use the system.
Pro se litigants who are indigent and/or incarcerated are not likely to use the
system. The court sees the potential benefits in reduced storage space and related
costs. However, judges still rely on paper copies, although, in chambers, law
clerks use documents in their electronic format because of the advantages of the
cut-and-paste option available to them in preparing memoranda on cases.
Obviously, continued implementation of the innovation is necessary for a
determination of the precise net gains to the court, the bar, and the litigants.
In sum, the experiences in Tucson and North Carolina demonstrate the
3. See Anders v. California, 386 U.S. 738 (1967) (requiring a court to afford a full internal
review to any motion to withdraw from representing the indigent client based on asserted lack of
applicable issues by court-appointed counsel in a criminal case).
2002]
MANAGING CASEFLOW
537
technical feasibility of electronic filing in state appellate courts. Their
applications are sufficiently different in scope and court context to indicate that
electronic filing is a flexible application of technology. Documentation of the
consequences of these two innovative efforts should not only help each of the
two courts refine their systems but should also help clarify the possible net gains
that other courts might expect to receive.
4. Summary.—Technology is a tool to enhance efficiency in the
resolution of appellate cases. Management information systems, issue tracking,
and electronic filing are pertinent areas of application. Each offers a different set
of problems and prospects for success. Yet, beyond the possible gains in
efficiency, these technologies should be seen as an opportunity for courts to take
stock of existing practices.
Because a unique contribution of technology is the capacity to process
large bodies of information in a large number of cases in a quick and
programmed manner, technological innovation promises to reduce inadvertent
delay caused by forgetfulness, omission, and oversight. Delay because cases
have fallen through the cracks is possible in every appellate court. Even in the
smallest courts, the current inventory and recent court decisions number in the
thousands and stretch the human capacity to record, store, manage, and resolve
cases quickly and accurately.
As a result, every appellate court should look at its existing policies,
procedures, and practices in light of these technologies and ask how can it
improve its current system. Do we really know what our cases look like? To
what extent do we group cases by issues? If not, why not? Exactly what are the
characteristics that shape the timeliness of resolution? Do we have information
available that can answer that question? How many paper copies do we now
require? Are they all necessary? What can be done to reduce unnecessary
duplication? Undertaking such an assessment of existing system operations is
likely to result in improving day-to-day practices and overall efficiency of the
appellate process even if, upon reflection, introduction of a particular
technological application is not deemed to be suitable.
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INDIANA LAW REVIEW
[Vol. 35:467
Appendix B
A Catalog of Appellate Caseflow
Improvement Mechanisms
Following a previous revision of the American Bar Association’s
appellate time standards in 1988,1 a 1990 ABA-sponsored project report entitled
Delay on Appeal turned its attention toward prescribing change methodology for
identifying specific causes and cures to meet the needs of individual appellate
courts.2 The project sponsored two workshops for judges and staffs of eight
different appellate courts (four courts attended each workshop) to spur the
establishment of backlog and delay reduction programs. Its report contains a
catalog of mechanisms used by different courts at that time, eschewing
evaluation of the effectiveness of any particular technique, but enunciating some
basic principles:
Delay reduction methods should assist the court in controlling the
caseflow from the time the appeal is initiated until it is concluded.
Unnecessarily intricate procedures need to be simplified so that the time
and effort devoted to monitoring control points is minimized. The court
should assume responsibility for identifying cases that do not require full
appellate treatment and process those cases differently. Likewise,
administrative and judicial functions need to be distinguished so that
judge time is properly apportioned to matters requiring judicial
discretion and expertise.3
The mechanisms and techniques discussed in Delay on Appeal cover the
gamut of appellate court innovations proposed and implemented during the 1970s
and 1980s:
•
•
•
•
•
•
•
•
screening by use of information statements;
differentiated procedures, such as:
—
multiple-track programs,
—
accelerated docketing, and
—
motions on the merits;
scheduling orders;
trial court liaisons;
manuals and forms;
training programs;
appendices;
court reporting methods including:
—
electronic sound recording,
—
computer-assisted transcription, and
1. JUDICIAL ADMIN. DIV., AM. BAR ASS’N, STANDARDS RELATING TO APPELLATE DELAY
REDUCTION (1988).
2. See RITA M. NOVAK & DOUGLAS K. SOMERLOT, DELAY ON APPEAL (1990).
3. Id. at 93-94.
2002]
MANAGING CASEFLOW
•
•
•
•
•
•
539
—
video recording;
transcript management through centralized control and
sanctions;
record limitations;
electronic filings;
attention to lawyer functions, including:
—
for-cause extensions,
—
prehearing conferences,
—
selective briefing, abbreviated briefs or submissions,
and restricted numbers of briefs;
—
law office case management,
—
coordination with institutional lawyers;
changes in judicial functions, including:
—
staff assistants,
—
eliminating or restricting oral argument,
—
expanded oral argument,
—
improving argument calendars,
—
memorandum decisions,
—
monitoring opinion production,
—
word processing and electronic mail;
structural adjustments, such as:
—
adding judges,
—
adding legal staff,
—
creating intermediate appellate courts,
—
modifying jurisdiction,
—
unified review of criminal appeals,
—
plea bargains on appeals, and
—
disincentives to appeal.
A separate set of mechanisms was outlined for use in reducing backlog.
Many of the techniques listed were identical, but some additional ones were:
•
•
•
•
•
•
docket review;
temporary judges;
appellate magistrates or commissioners;
modifying assignment procedures;
creating special panels, and
expanding argument calendars and opinion-writing goals.
Many of these ideas for improving appellate court caseflow management
have been around for some time. Almost every one is being used in one or more
of the six courts studied in this project. Nevertheless, not enough is truly known
about just how effective many particular mechanisms have proven to be in
speeding the flow of cases, except for the specific findings on the processes
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INDIANA LAW REVIEW
[Vol. 35:467
employed by courts included in Martin and Prescott’s seven-court study4 or
Chapper and Hanson’s four-court examination.5 It is possible that the most
significant potential for delay reduction is offered by yet another set of
mechanisms: education of judges in case processing, combined with efforts to
absorb new judges into the court’s case processing culture.
4. See JOHN A. MARTIN & ELIZABETH PRESCOTT, APPELLATE COURT DELAY (Michael J.
Hudson ed., 1981).
5. See JOY A. CHAPPER & ROGER A. HANSON, NAT’L CTR. FOR STATE COURTS,
INTERMEDIATE COURTS: IMPROVING CASE PROCESSING (1990).
2002]
MANAGING CASEFLOW
541
Appendix C
Appellate Court Caseflow Management
Self-Assessment Questionnaire
The Self-Assessment Questionnaire contained in this Appendix is
designed to be used in two ways: as a stand-alone instrument that enables leaders
of an appellate court to undertake a swift assessment of the court’s caseflow
management system; and as an adjunct to an independently conducted study of
appellate case processing in a jurisdiction.
The Self-Assessment Questionnaire contains a total of sixty-six
questions, each focused on actions or attitudes that reflect the court’s level of
performance in relation to one of the ten key elements of sound appellate
caseflow management discussed in Section B of Part IV. Each question is scaled,
allowing responses between 1 (low) and 5 (high) on the court’s performance with
respect to the subject matter of the question. There are at least five questions
relating to each of the key elements.
Once a questionnaire has been completed, it can be self-scored, using the
Questionnaire Scoring Sheet that follows question 66, and the results can easily
be graphed using the form that accompanies the scoring sheet. As a stand-alone
diagnostic instrument, the questionnaire can be useful in giving an individual
appellate judge or clerk a good overall sense of the strengths and weaknesses of
the court. However, the Self-Assessment Questionnaire can be even more
valuable in getting an accurate picture of strengths and weaknesses if a number
of different practitioners are involved in the process. Having a number of
different individuals participate in a court’s self-assessment process also makes
it possible to learn the extent to which the perceptions of different practitioners
diverge on particular topics. It can be very useful, for example, for judges,
clerk’s office staff, and appellate staff attorneys to compare the results of their
assessments, noting areas where there is consensus on problems that need to be
addressed and discussing the reasons why their responses to some questions may
differ.
If an independent study of an appellate court is being conducted, it will
be useful to have judges and staff complete the questionnaire as part of the
preparation for a site visit by the study team. If study team members can review
the responses to the questionnaire prior to conducting on-site interviews, they
should be able to focus their interviews and other data collection efforts much
more effectively. Additionally, of course, the results provide a data base that will
be helpful in the study team’s analysis of the situation in the jurisdiction with
respect to appellate caseflow management.
Finally, even if no one in the appellate court completes the SelfAssessment Questionnaire, it can still be a very useful tool for studying appellate
case processing in a jurisdiction. Members of a study team can use it to help
shape questions for on-site interviews and, in the analysis phase, to help assess
the court’s performance in relation to key elements of sound appellate caseflow
management.
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INDIANA LAW REVIEW
[Vol. 35:467
Instructions: Score the court on each question. If you are uncertain, use your best
estimate. If you are assessing caseflow management in a division of the court, make
appropriate modifications in the wording of the questions. After completing this form,
transfer your scores to the scoring sheet. Then plot the results on the assessment graph.
1.
The court has adopted time standards that establish expected outside time limits
on case-processing time from the filing of the notice of appeal to the disposition
of the appeal for major categories of cases.
1
No standards
or guidelines
2
1
No
3.
1
No
4.
1
No
5.
1
No
2
3
Informal guidelines exist
4
5
Yes— written
guidelines adopted
and published
All judges regularly receive management information reports that enable them
to know the number of pending cases in the court; the distribution of these cases
by age since argument or submission; and the status of each case.
2
3
Some information
4
5
Yes—all of this
information is regularly
provided (at least monthly)
W hen new appellate caseflow management programs or procedures are being
considered, the court’s leaders consult with leaders of the bar and of other
organizations that may be affected (e.g., prosecutor, public defender, and trial
courts).
2
3
Sometimes
4
5
Yes, as a
standard policy
The appellate court both takes responsibility for cases and counts every case as
pending from the date that the notice of appeal or similar initiating petition for
review is first filed.
2
3
Some categories of cases
4
5
Yes
The chief judge of the court has endorsed the court’s (or the ABA’s) caseprocessing time standards.
2
3
Quiet support
within the court
4
5
Yes, publicly
and emphatically
2002]
6.
MANAGING CASEFLOW
There is a commonly shared commitment, on the part of the judges, to the principle
that the court has responsibility for ensuring expeditious case processing.
1
No shared
judges
commitment
7.
1
No
4
5
Virtually all
are committed
4
5
Yes— virtually all
are knowledgeable
and use the principles
and techniques
The court regularly conducts training on caseflow management principles and
techniques for judges and staff.
2
3
Some training;
conducted irregularly
4
5
Yes
The court has established, and uses, a system for evaluating the effectiveness of
judges in managing the cases for which they are assigned primary decisional
responsibility.
2
3
Some criteria exist
4
5
Yes
The court has few or no cases pending for more than the maximum length of time
established by its own case-processing time standards or, alternatively, the ABA
case-processing standards.
1
Don’t know
11.
3
Some
1
No
10.
3
Some judges
are committed
2
1
No training
9.
2
Members of the judges’ support staffs (law clerks, judges’ secretaries, and central
staff counsel) are knowledgeable about caseflow management principles and
techniques, and use them in helping to manage caseloads and individual cases.
1
No
8.
543
2
Many cases are older
than the court’s
(or ABA’s)
3
About 30%
are older
4
5
10-15% are
No cases or
over the
a few are over
standards
the standards
There are published policies and procedures governing the caseflow process,
readily available to judges, the court’s staff, and bar members.
2
3
Exist for some areas
4
5
Yes, covering all major
caseflow issues/areas
544
12.
INDIANA LAW REVIEW
The chief judge plays a leading role in initiating caseflow management
improvements in the court.
1
No
13.
2
1
No
15.
1
No
16.
1
No
17.
1
No
3
Sometimes
4
5
Yes
The appellate court appoints counsel rapidly upon receipt of a notice of appeal
or other document indicating that a criminal defendant is indigent.
1
Rarely or never
14.
[Vol. 35:467
2
3
Sometimes
4
5
Always
Electronic transmission of trial court records and of motions and briefs on the
appeal is used by the appellate court.
2
3
For some purposes
4
5
Yes
The appellate court exercises supervisory responsibility over preparation of the
record, rules promptly on issues involving designation of the record, and requires
designations to be filed with the appellate court as well as with the trial court.
2
3
Exercises some
oversight
4
5
Yes
The appellate court has established a procedure for use in simple cases that
provides for accelerated filing of the record and similar procedures regarding
speedy briefing and decision in these cases.
2
3
Has established
limited special process
for some types of cases
4
5
Yes
The appellate court supervises transcript preparation, including establishing
rules, assuring expeditious payment to the transcript preparer, and requiring the
filing of an ordering statement in the appellate court.
2
3
4
Uses some of
these supervisory techniques
5
Yes
2002]
18.
MANAGING CASEFLOW
Assess the difficulty an attorney has in obtaining a continuance of the due date
for filing the brief.
1
2
Easily obtainable upon
request or stipulation
19.
2
2
2
4
5
Yes
3
Some judges attend,
no standard court policy
4
5
Yes— all judges
are expected to attend
sessions periodically
3
Sometimes
4
5
Yes
The court disposes of at least as many cases as are filed each year, in each
general category of cases.
1
2
No— filings
consistently exceed
dispositions
23.
3
Some
Judges who do an effective job of managing those cases for which they are
responsible are publicly recognized for excellent performance.
1
No
22.
4
5
Can be obtained only on
written motion showing
substantial cause
Judges attend national or in-state seminars on appellate caseflow management
and related topics.
1
No
21.
3
Attorney must show
cause, but request is
usually granted
Judicial support staff or clerk’s office staff notify judges of cases that have been
pending for long periods of time and cases in which there have been repeated
continuances.
1
No
20.
545
3
Some years, in some
categories of cases
4
5
Yes,
consistently
The court’s staff at all levels are aware of the court’s case-processing time
standards and other caseflow management goals.
1
There are no goals
2
3
Some are aware
4
Top staff are
aware
5
Yes
546
24.
INDIANA LAW REVIEW
The court encourages use of technology by accepting computer-generated briefs,
including those with HTML links, and promoting use of advanced methods for
rapidly preparing trial court transcripts.
1
No
25.
2
1
Rarely
28.
1
No
4
5
Embraces full range
of advanced
technology
2
3
Some differentiated
treatment
4
5
Multi-track
Judges’ commitment to effective caseflow management is demonstrated by their
actions in holding lawyers to schedules, limiting continuances to situations in
which good cause is shown, and allowing continuances only for short intervals.
1
Generally, no
27.
3
Has used some
new technologies
The court has a process for screening cases for assignment to different appellate
processing tracks.
1
No screening
process
26.
[Vol. 35:467
2
3
Inconsistent
4
5
Generally, yes
The system of scheduling cases for briefing and argument provides attorneys and
the court with certainty that a case will be argued or submitted shortly after the
briefs are filed.
2
Less than half
of the time
3
50-70% of
the time
4
70-90% of
the time
5
90-100%
of the time
The court has a central staff unit that regularly monitors the caseload, identifies
problems (e.g., pending caseload increasing or certain cases taking unduly long),
and recommends action to the chief judge or other judge with administrative
responsibility.
2
3
Some central staff
monitoring; occasional
recommendations
4
5
Yes
2002]
29.
1
No
30.
1
No
31.
1
No
32.
1
No
33.
1
No
34.
1
No
MANAGING CASEFLOW
547
The court has time standards/guidelines governing the time interval between
each major stage in the appellate litigation process and enforces rules governing
timely submission of papers and briefs.
2
3
Guidelines cover some
but not all intervals
4
5
Yes
The court has a standard orientation program for new judges and new staff
members in which the court’s policies and expectations regarding caseflow
management and timely case processing are covered thoroughly.
2
3
Some orientation
4
5
Yes, thorough
orientation
The court decides motions quickly so that the basic schedule for considering a
case is not delayed by motions being filed.
2
3
Has some system to
expedite motions
4
5
Processes
motions swiftly
Any judge on a panel assigned a case may place a case screened for summary
treatment on a calendar for full argument and consideration.
2
3
Judge may recommend,
but court decides
4
5
Yes
The chief judge is widely regarded— by judges, staff, the bar, and others— as
actively committed to reducing delays and implementing effective appellate
caseflow management procedures.
2
3
Mixed perceptions
4
5
Yes
The court’s caseflow management goals and its performance in relation to the
goals are subjects of regular communication with the bar and media.
2
3
Sporadic communication
4
5
Yes
548
35.
1
No
36.
1
No
37.
1
No
38.
1
No
39.
1
No
40.
1
No
INDIANA LAW REVIEW
[Vol. 35:467
The court regularly produces reports that show trends in filings, dispositions,
pending caseloads, and case-processing times.
2
3
Some trend analysis
4
5
Yes— regular
analysis of trends in
all these areas
The judges discuss the status of the caseload and other caseflow management
issues at regularly-held judges’ meetings.
2
3
Sometimes
4
5
Yes
Consultation with attorneys, by a judge or court staff member, occurs early in a
case to set deadlines for completion of stages of the case.
2
Only if requested
by attorney
3
Sometimes
4
Mainly in
complex cases
5
Yes, in
all cases
The judges recognize the need to monitor the pace of litigation and are actively
committed to seeing the court meet standards for expeditious case processing.
2
3
Some judges recognize the need
4
5
Yes
Judges’ support staffs and clerk’s office staff help in achieving the court’s goals
(e.g., in contacts with attorneys, including scheduling cases for argument dates).
2
3
Some
4
5
Yes
The court regularly conducts training sessions for practicing lawyers (especially
young lawyers) to familiarize them with the court’s caseflow management
policies, procedures, and expectations.
2
3
Some training,
conducted irregularly
4
5
Yes
2002]
41.
1
No
42.
1
No
43.
1
No
44.
1
Rarely
45.
1
No
46.
1
No
MANAGING CASEFLOW
549
Judges who have administrative responsibility meet with the judges in their
panels or divisions to review the status of pending caseloads and discuss ways
of dealing with common problems.
2
3
Occasionally
4
5
Yes, at least
monthly
The court regularly produces management information reports that enable judges
and staff to assess the court’s progress in relation to its caseflow management
goals.
2
3
Information available
on some goals
4
5
Yes
Mechanisms for obtaining the suggestions of court staff about caseflow
management problems and potential improvements exist and are used by the
court’s leaders.
2
3
Occasionally
4
5
Yes
Attorneys file briefs on or before the scheduled due date for their brief and are
ready to proceed on the argument date.
2
Less than half
the time
3
50-70% of
the time
4
70-90% of
the time
5
90-100%
of the time
Judges whose performance, in cases which they have been assigned for opinion
preparation, is below acceptable standards are assisted and receive negative
sanctions if their performance does not improve.
2
3
Sometimes
4
5
Yes
The court follows established procedures to identify inactive cases and dispose
of them.
2
3
Occasional reviews
and purges of inactive
4
5
Yes— regular
are done and
“purge” procedures
are followed
550
47.
INDIANA LAW REVIEW
The court administrator or clerk of court is widely regarded— by judges, staff,
and others— as knowledgeable about appellate caseflow management principles
and practices, familiar with the court’s caseload situation, and effective in
recommending and implementing policy changes.
1
No
48.
2
1
Attorney
50.
2
Many cases
over
standards
1
4
5
Yes
3
Fair performance
in relation to
standards
4
5
Good performance;
Yes—
some improvement the court
desirable
is consistently
within the
standards
Techniques for avoiding or minimizing attorney schedule conflicts are part of the
scheduling system, and attorneys’ schedules are accommodated to the extent
reasonably possible.
2
3
Some techniques are
used; system could be
improved on some goals
4
5
Techniques are
used and work well;
no improvement needed
The judges transmit drafts of opinions and decisions electronically among
themselves to expedite the decisional process.
1
2
No electronic capability
51.
3
Mixed perceptions
The time required to complete case processing is generally within the time
standards adopted by the court or (if no standards have been adopted by the
court) does not exceed the ABA case-processing time standards.
1
Don’t know
49.
[Vol. 35:467
3
Some use of network
to send drafts
4
5
Almost always
Senior staff members regularly meet with judges in leadership positions to
discuss caseload status and develop plans for addressing specific problems.
2
3
Occasionally
4
5
Yes
2002]
52.
1
No
53.
1
No
54.
1
No
55.
1
No
56.
1
Never
57.
1
No
MANAGING CASEFLOW
551
Judges with administrative responsibility review information on the caseflow
management performance of judges in the court (or in their divisions), give
public recognition to those doing an outstanding job, and meet with those whose
performance is subpar to discuss improvements
2
3
Sometimes
4
5
Yes
The court has adopted goals for the time within which ready cases are argued or
submitted.
2
3
Informal expectations
exist
4
5
Yes
Key management information reports are widely distributed to judges and staff,
and include short written analyses that highlight problems and issues.
2
3
Limited distribution and
little analysis
4
5
Yes
The court provides information about its caseflow management goals and about
its performance in relation to these goals to the media on a regular basis.
2
3
Occasionally
4
5
Yes, regularly
Simple cases that may be amenable to swift disposition are identified at an early
stage for special processing.
2
Rarely
3
Some— mainly if
counsel requests
4
5
Some categories
Yes,
of cases
routinely
Court staff members attend national or in-state seminars on caseflow
management and related topics.
2
3
Some staff members
have such training
4
5
Yes— virtually
all staff members
periodically receive
such training
552
58.
INDIANA LAW REVIEW
The court has established goals for the maximum size of its pending caseload(s)
and has developed plans for reducing its caseload to that number (or, if the
current caseload is at an acceptable size, for ensuring that the caseload does not
exceed the goal that has been set).
1
No
59.
2
1
No
62.
1
No
4
5
Yes
2
3
Irregularly
4
5
Yes, at least
once a week
How frequently are cases that are ready to be scheduled for argument or
submission delayed because there are more ready cases than can be reached on
the schedule dates available?
1
Very
frequently
61.
3
Some goals exist;
status of plans unclear
The chief judge and clerk/court administrator regularly meet to review caseload
status, discuss policy and operational problems affecting caseflow management,
and develop specific policies and plans.
1
Rarely or never
60.
[Vol. 35:467
2
Frequently
3
Occasionally
4
Rarely
5
Never
Staff members who do an effective job of managing caseloads for which they are
responsible are publicly recognized by the court’s leaders for their good
performance.
2
3
Sometimes
4
5
Yes
The appellate court requires that a copy of the notice of appeal or similar
initiating document be filed with the appellate court at the same time it is filed
in the trial court.
2
3
Sometimes
4
5
Yes
2002]
63.
MANAGING CASEFLOW
Every pending case on the court’s docket has a “next action” date scheduled,
including a decision date within the goals set by the court.
1
Most cases
do not have
next action
date
scheduled
64.
2
Approximately
10-20% of cases
have no next action
date scheduled
3
Approximately
200-40% of cases
have no next
action date
scheduled
4
Almost all cases
have a next action
date scheduled
5
Yes
The court has adopted goals for the time within which opinions are prepared by
the judge responsible for the opinion.
1
No
65.
553
2
3
Informal expectations
exist
4
5
Yes
Judges consistently prepare opinions in cases within the time period set by the
court’s standards or, if no standards covering the opinion preparation stage have
been adopted, within 45 days in simple cases and 90 days in all cases.
1
No standards
and many opinions
2
3
Some opinions
are prepared quickly
but a significant
number take many months
4
5
Yes— time
standards exist and
are met consistently
66.
The following caseflow management information is readily available and
regularly used.
(Y = Yes; N = No)
Available
Used
Information
_____
_____
_____
_____
_____
_____
_____
_____
_____
_____
_____
_____
_____
_____
_____
_____
_____
_____
_____
_____
Number of pending cases, by case type
Age of pending cases (frequent distribution, within age
categories)
Change (number and age) in pending cases from last report
Age of pending caseload compared to time standards
Age of cases at disposition, by case type
Percentage of briefs filed on first scheduled due date
Number of continuances of scheduled events in each case
Reasons for each continuance
Number and proportion of dispositions by type of
disposition
Annual filings and dispositions, by case type
To score this question, add the number of Y’s in the “Available” and “Used” columns, and
divide the total (____) by 4. RESULT: ______
554
INDIANA LAW REVIEW
[Vol. 35:467
Appellate Caseflow Management Self-Assessment Questionnaire
Questionnaire Scoring Sheet
Instructions: Record the score for each question in the appropriate space below
Leadership
Goals
Information
Communications
Caseflow
Management
Procedures
5.
1.
2.
3.
4.
12.
23.
14.
11.
13.
33.
29.
24.
36.
15.
41.
34.
35.
37.
16.
47.
48.
42.
43.
17.
52.
53.
50.
55.
25.
59.
64.
54
62.
27.
66.
44.
49.
56.
60.
62.
TOTAL=
TOTAL=
TOTAL=
TOTAL=
TOTAL=
_______
_______
_______
_______
_______
Out of 35
Out of 35
Out of 40
Out of 35
Out of 60
possible,
possible, Divide
possible,
possible, Divide
possible, Divide
Divide total by
total by 35:
Divide total by
total by 35:
total by 60:
35:
SCORE
40:
SCORE
SCORE
SCORE
______
SCORE
______
______
______
______
Judicial
Staff
Education and
Mechanisms for
Backlog
Commitment
Involvement
Training
Accountability
Reduction/
Inventory
Control
6.
7.
8.
9.
10.
18.
19.
20.
21.
22.
26.
28.
30.
31.
46.
38.
39.
40.
32.
58.
65.
51.
57.
45.
63.
61.
TOTAL=
TOTAL=
TOTAL=
TOTAL=
TOTAL=
_______
_______
_______
_______
_______
Out of 25
Out of 25
Out of 25
Out of 30
Out of 25
possible,
possible, Divide
possible,
possible, Divide
possible, Divide
Divide total by
total by 25:
Divide total by
total by 30:
total by 25:
25:
SCORE
25:
SCORE
SCORE
SCORE
______
SCORE
______
______
______
______
2002]
MANAGING CASEFLOW
555
Appellate Caseflow Management Self-Assessment Questionnaire
Graph of Self-Assessment Questionnaire Results
Instructions: Using the scores recorded on the Questionnaire Scoring Sheet, plot the
final score for each dimension on the graph below.
Leadership
Goals
Information
Communications
Caseflow Mgmt.
Procedures
Judicial
Commitment
Staff
Involvement
Education and
Training
Mechanisms for
Accountability
Backlog
Reduction
.1
.2
.3
.4
.5
.6
.7
.8
.9
1.0